John Dean on the Foreign Intelligence Surveillance Act

John Dean is an attorney and a disenchanted Conservative. You may remember him from the Nixon years. Here's a little of his Bio with more at the link:

Before becoming Counsel to the President of the United States in July 1970 at age thirty-one, John Dean was Chief Minority Counsel to the Judiciary Committee of the United States House of Representatives, the Associate Director of a law reform commission, and Associate Deputy Attorney General of the United States. He served as Richard Nixon's White House lawyer for a thousand days.

Here's his summation of the Fisa Act Ammendments. This is a must read:

The So-Called Protect America Act: Why Its Sweeping Amendments to the Foreign Intelligence Surveillance Act Pose Not Only a Civil Liberties Threat, But a Greater Danger As Well
By JOHN W. DEAN
----
Friday, Aug. 10, 2007

Congressional Democrats are getting a lot of well-earned heat from rank-and-file members of their party, not to mention editorial writers and bloggers, for their lack of spine in refusing to reject the Bush/Cheney Administration's sweeping amendments to the Foreign Intelligence Surveillance Act (FISA). Just before Congress departed for its August recess, the Administration jammed through in five days - from start to finish -- the dubiously titled Protect America Act (PAA) of 2007, over the protest of the Democratic leadership. The only thing good about the PAA is that it is temporary - with a six month expiration date (although surveillance programs authorized under it can operate for up to one year.)

On her Democracy NOW daily program, Amy Goodman's (streaming video) interviewed Salon.com's law blogger, Glenn Greenwald, and the president of the National Lawyers Guild, Marjorie Cohn, about the PAA. The interview nicely sets forth what happened and its broad implications. Simply stated, Bush threatened to make a political issue of any effort by Congressional Democrats to protect the civil liberties of American. Bush surely succeeded beyond his most fervent hope in his intimidation of sixteen Democratic members in the Senate and forty-one Democratic members in the House, earning these members a place on "the roll of shame" in the blogosphere.

A Threat Greater Than That to Civil Liberties: Executive Aggrandizement

The Washington Post, the New York Times, and politically-diverse organizations ranging from the John Birch Society and the Cato Institute to the American Civil Liberties Union all agree that the PAA is a serious mistake, and threat to the civil liberties of Americans. They point out that the law ignores the Fourth Amendment while, at the same time, hiding its actual operations in national security secrecy. Indeed, Congress was not even certain about the full extent of what it has authorized because President Bush and Vice-President Cheney refused to reveal it.

It is not likely that law-abiding Americans will even know that the U.S. Government's intelligence gathering operations are listening in on their calls to and from foreign countries, or similarly scanning emails. For this reason, it is not to be expected that many Americans will care about what the Democratic Congress has given a Republican president who has proven himself insensitive to anyone's privacy other than his own.

There is, however, a threat in this new law even greater than its robbing Americans of their communications privacy, which commentators and critics have virtually ignored. This law is another bold and blatant move by Bush to enhance the powers of the Executive branch at the expense of its constitutional co-equals.

Congress was willing to give Bush the amendments to FISA that would make this law effective under current technology. The 1978 law did not account for the fact that modern digital communications between people outside the United States often is routed through the United States, yet the FISA Court said surveillance of such routed communications required a warrant. Nevertheless, Bush rejected the legislation proposed by the Democrats because it also contained checks on the use of surveillance powers.

This, of course, is consistent with Bush and Cheney's general drive to weaken or eliminate all checks and balances constraining the Executive. This drive was evidenced by countless laws enacted by the Republican-controlled Congresses during the first six years of the Administration, and in countless signing statements added by the President interpreting away any constraints on the Executive. Thus, when even the GOP Congresses required presidential compliance and reporting, they were thwarted.

The most stunning aspect of the Democrats' capitulation is their abandoning of their institutional responsibility to hold the president accountable. The Protect America Act utterly fails to maintain any real check on the president's power to undertake electronic surveillance of literally millions of Americans. This is an invitation to abuse, especially for a president like the current incumbent.

Fixing the Dangerously Deficient Albeit Quickly Sunsetting Protect America Act And Ignoring the White House's Requests For Even More Power

Though it is quite certain abuses of the surveillance powers under the Protect America Act will occur, they have not yet occurred. The failure to provide a check on such potential abuses, however, has already occurred. It represents the greatest failing of the Democratic Congress in acceding to the demands of Bush and Cheney. It is this failure that should be a paramount concern of the Congress when it next addresses this temporary law.

Speaker of the House Nancy Pelosi sent a letter to the chairmen of the House Judiciary Committee and the House Intelligence Committee, requesting they develop legislation "addressing the many deficiencies" of the temporary law as soon as Congress returns from its recess.

Even though the White House got everything it demanded from Congress, it is requesting even more. When signing the Protect America Act, Bush said, "When Congress returns in September, the Intelligence Committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director of National Intelligence Mike McConnell, including the important issues of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001."

Bush also wants legislative immunity for the American companies, and government officials (including himself), to protect them from criminal prosecution for violating the criminal provision of FISA. As readers will recall, before Congress caved and gave Bush power to conduct this surveillance, he - and telecommunication companies simply opted to do so illegally. Now, Bush will claim, with some justification, that because Congress has now made legal actions that were previously illegal, it should retroactively clear up this nasty problem facing all those who broke the law at his command.

If the Democrats fail to stand up to the bullying of this weak president, and ignore his demands for more unaccountability, they might as well start looking for another line of work. Not only are their fellow rank and file Democrats going to turn on them in 2008, but the overwhelming numbers of independents who assisted them in regaining power are going to desert them in droves.

At bottom, Democrats truly only need to add one fix to this dangerous law: meaningful accountability. They must do so, or face the consequences.

No one wants to deny the intelligence community all the tools it needs. But regardless of who sits in the Oval Office, no Congress should trust any president with unbridled powers of surveillance over Americans. It is not the way our system is supposed to work.

Dems Caved on the FISA ACT-Bush got his way again

From the AFP:

Senate endorses expanded wiretap powers by Stephen Collinson
Fri Aug 3, 11:34 PM ET

The US Senate Friday voted to extend the power of US intelligence agents to eavesdrop on terror suspects, in a victory for the White House after a tense showdown with congressional Democrats.

Democratic leaders balked at White House terms for a deal, but the Senate went ahead and passed a Republican bill which reflected President George W. Bush's requests.

The controversy centered on a program designed to listen in on telephone and email conversations mainly outside the United States, but routed through US-based communications firms.

Senators voted to permit intelligence officers to listen in to such conversations without obtaining prior approval from a special court.

The House of Representatives voted against a Democratic party alternative, but could vote on the version passed in the Senate, which provides rules which expire within six months, in the next few days.

"My Republican colleagues chose to rubberstamp a flawed administration proposal," said Democratic Senate Majority leader Harry Reid, accusing the White House of misusing anti-terror powers in the past.

But White House deputy spokesman Tony Fratto said the bill would give US spy agencies the tools they needed to fight terrorism.

"It is urgent that this legislation become law as quickly as possible, so we encourage the House of Representatives to swiftly consider and pass this bill."

Democrats were angry because they claimed the Republican approach would allow Attorney General Alberto Gonzales, target of their demands for perjury and impeachment proceedings, to authorize wide-ranging surveillance.

US intelligence czar Mike McConnell however rejected the Democratic alternatives, saying they contained too much "uncertainty.

"I must have certainty in order to protect the nation from attacks that are being planned today to inflict mass casualties on the United States," he said.

The White House wants Congress to endorse eavesdropping on conversations between suspected terrorists abroad without prior court approval.

Democratic proposals allow that, but say individual warrants should be required before agents can listen in on a conversation involving one party in the United States, in a bid to protect civil liberties.

The White House says it is unreasonable to force agents to get the court to agree ahead of time to listen to conversations between a target abroad who makes frequent calls to a contact who happens to be on US soil.

Bush earlier urged Democrats to close the "intelligence gap" in US law, which he said threatened the government's ability to keep Americans safe, and urged them not to start a summer break before passing the bill.

"I'm going to ask Congress to stay in session until they pass a bill that will give our intelligence community the tools they need to protect the United States."

The rush to change US law came after a US federal judge earlier this year secretly ruled a key element of the electronic telephone wiretapping program was illegal.

The ruling held that the Bush administration had overstepped its authority in trying to eavesdrop on communications between two locations abroad that are passed through routing stations in US territory.

Republican Senator Christopher Bond, who sponsored the Senate version, warned that failure to act promptly could endanger US security.

It is definately time to have a third party that will stop the direction this country is being pushed. Write your congress people on how disappointed you are in them. Let them know that things must change and soon. Impeach the lot of them and change or ammend the laws to where they were.

Sometimes I feel like a voice in the wilderness!

UPDATE: The House caved too!

House approves foreign wiretap bill

Bush Invokes Executive Privilege

Harriet Miers and Sara Taylor were covered by the president invoking executive privilege and won't be testifying at either Senate or House committees.

From the AP:

Bush denies Congress access to aides
By LAURIE KELLMAN, Associated Press Writer
1 hour, 57 minutes ago

President Bush invoked executive privilege Monday to deny requests by Congress for testimony from two former aides about the firings of federal prosecutors.

The White House, however, did offer again to make former counsel Harriet Miers and one-time political director Sara Taylor available for private, off-the-record interviews.

In a letter to the heads of the House and Senate Judiciary panels, White House counsel Fred Fielding insisted that Bush was acting in good faith and refused lawmakers' demand that the president explain the basis for invoking the privilege.

"You may be assured that the president's assertion here comports with prior practices in similar contexts, and that it has been appropriately documented," the letter said.

Retorted House Judiciary Committee Chairman John Conyers:

"Contrary what the White House may believe, it is the Congress and the courts that will decide whether an invocation of executive privilege is valid, not the White House unilaterally," the Michigan Democrat said in a statement.

The exchange Monday was the latest step in a slow-motion legal waltz between the White House and lawmakers toward eventual contempt-of-Congress citations. If neither side yields, the matter could land in federal court.

In his letter regarding subpoenas the Judiciary panels issued, Fielding said, "The president feels compelled to assert executive privilege with respect to the testimony sought from Sara M. Taylor and Harriet E. Miers."

To become familiar with executive privilege there are three excellent blogs to visit:

Fire Dog Lake

Talk Left

The Next Hurrah

And all those blogs have much more legal info on the Libby case, the US Attorneys, and the Supremes

Bush's Signing Statements being probed by House

It's about time. It's time to change alot of things that the president can do without oversight. And I would go so far as to make it a federal offense if the president tries to over-ride these laws. And if the president, vice-president or any of his cabinet breaks or abuses the laws, they should be suspended pending investigation.

From Daily Kos:

by Kagro X
Mon Jul 02, 2007 at 04:36:55 PM PDT
The following is from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.

In the [Constitutional] convention George Mason argued that the President might use his pardoning power to "pardon crimes which were advised by himself" or, before indictment or conviction, "to stop inquiry and prevent detection." James Madison responded:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty...

Madison went on to [say] contrary to his position in the Philadelphia convention, that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected.

Here's the article from Boston.com about the signing statements:

House panel probing Bush's record on signing statements
By Charlie Savage, Globe Staff | February 1, 2007

WASHINGTON -- The new chairman of the House Judiciary Committee, John Conyers Jr. of Michigan, said yesterday that he is launching an aggressive investigation into whether the Bush administration has violated any of the laws it claimed a right to ignore in presidential "signing statements."

Bush has claimed that his executive powers allow him to bypass more than 1,100 laws enacted since he took office. But administration officials insist that Bush's signing statements merely question the laws' constitutionality, and do not necessarily mean that the president also authorized his subordinates to violate them.

Conyers said the president has no power " to ignore duly enacted laws he has negotiated with Congress and signed." And he vowed to find out whether the administration has followed each law it challenged -- including laws touching on classified national security matters, such as the tactics used to interrogate suspected terrorists and the FBI's use of the Patriot Act.

"This is a constitutional issue that no self-respecting federal legislature should tolerate," Conyers said, and he added that the committee was determined to "get to the bottom of this matter, and to be blunt, we are not going to take no for an answer."

The Michigan Democrat made his remarks at the committee's first oversight hearing since Democrats took control of Congress, which Conyers devoted to signing statements. He called the hearing a kickoff to his plans to use the coming session to probe the administration's "growing abuse of power."

Democrats on the Judiciary Committee are beefing up their staff by hiring a special "oversight and investigative unit" of about six attorneys to lead the panel's probes of the administration. The group is headed by Elliot Minc- berg , formerly the general counsel of the liberal activist group People for the American Way.

Republicans on the committee complained about the hearing, saying that the controversy over the Bush administration's signing statements is overblown.

But Democrats said they wanted to know whether Bush has followed through on his claims that the Constitution gives him the power to exempt executive branch officials from laws that Congress has passed to regulate the government, including affirmative action hiring requirements, a ban on all forms of torture, and oversight provisions in the Patriot Act.

And more from the Senate from Carpetbagger Report:

Specter is making a ’statement’

Sen. Arlen Specter (R-Pa.) has caved to White House demands on a wide variety of issues, but when it comes to presidential signing statements, the Pennsylvania senator has actually been pretty good. A year ago, he even tried to introduce legislation that would allow Congress to sue the president over his use of these legally dubious documents. He asked at the time, “What’s the point of having a statute if … the president can cherry-pick what he likes and what he doesn’t like? … If he doesn’t like the bill, let him veto it.”

Not surprisingly, Specter’s Republican colleagues quickly would put the kibosh on the proposal. John McCain helped kill the bill, arguing, “I think the president will enforce the law.” (Yes, McCain’s child-like naivete is rather amusing in retrospect.)

Specter, however, is quite right. We have a bizarre dynamic at play: Congress passes bills, Bush signs the bills into law, and then, in several instances, after the president issues signing statements, the Bush administration decides not to do when the law mandated. Bush has actually used signing statements to challenge more than 1,100 sections of legislation he’s signed into law — more than every other president in U.S. history combined

Thanks to a more reasonable Senate majority, Specter is giving his bill another shot.

Frustrated by the Bush administration’s continued use of presidential signing statements to challenge or ignore provisions of Congressionally approved legislation, Senate Judiciary ranking member Arlen Specter (R-Pa.) has reintroduced legislation to rein in President Bush’s ability to use the tactic.

Specter, who has long been a critic of Bush’s use of signing statements, quietly introduced his Presidential Signing Statements Act of 2007 on Friday.

“The president cannot use a signing statement to rewrite the words of a statute nor can he use a signing statement to selectively nullify those provisions he does not like,” Specter said in a floor statement.

Specter added, “If the president is permitted to rewrite the bills that Congress passes and cherry-pick which provisions he likes and does not like, he subverts the constitutional process designed by our framers.” (To which the White House apparently responded, “Duh.”)

Lots of bad news for our Nation today

First of all, Bush refuses to supply subpoenaed documents.

From the AP:

WASHINGTON (AP) - President Bush, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors.

Bush's attorney told Congress the White House would not turn over subpoenaed documents for former presidential counsel Harriet Miers and former political director Sara Taylor. Congressional panels want the documents for their investigations of Attorney General Alberto Gonzales' stewardship of the Justice Department, including complaints of undue political influence.

The Democratic chairmen of the two committees seeking the documents accused Bush of stonewalling and disdain for the law, and said they would press forward with enforcing the subpoenas.

"With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation," White House counsel Fred Fielding said in a letter to the chairmen of the Senate and House Judiciary Committees. "We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion."

Thursday was the deadline for surrendering the documents. The White House also made clear that Miers and Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers.

"Increasingly, the president and vice president feel they are above the law," said Senate Judiciary Chairman Patrick Leahy, D-Vt. He portrayed the president's actions as "Nixonian stonewalling."

His House counterpart, Judiciary Chairman John Conyers, D-Mich., said Bush's assertion of executive privilege was "unprecedented in its breadth and scope" and displayed "an appalling disregard for the right of the people to know what is going on in their government."

And from our Supremes, Court Limits Schools on Race

WASHINGTON (AP) - The Supreme Court on Thursday rejected school assignment plans that take account of students' race in two major public school districts. The decisions could imperil similar plans nationwide. The Court also blocked the execution of a Texas killer whose lawyers argued that he should not be put to death because he is mentally ill.

Today is probably the Court's last session until October.

The school rulings in cases affecting schools in Louisville, Ky., and Seattle leave public school systems with a limited arsenal to maintain racial diversity.

The court split, 5-4, with Chief Justice John Roberts announcing the court's judgment. Justice Stephen Breyer wrote a dissent that was joined by the court's other three liberals.

Justice Anthony Kennedy wrote a concurring opinion in which he said race may be a component of school district plans designed to achieve diversity.

He agreed with Roberts that the plans in Louisville and Seattle went too far. He said, however, that to the extent that Roberts' opinion could be interpreted as foreclosing the use of race in any circumstance, "I disagree with that reasoning."

The two school systems in Thursday's decisions employ slightly different methods of taking students' race into account when determining which school they would attend.

Senate Blocks Immigration Bill. This is not all bad though. I think a better bill can be passed. And it is good news since the president doesn't get his way on this one.

WASHINGTON (AP) - The Senate drove a stake Thursday through President Bush's plan to legalize millions of unlawful immigrants, likely postponing major action on immigration until after the 2008 elections.

The bill's supporters fell 14 votes short of the 60 needed to limit debate and clear the way for final passage of the legislation, which critics assailed as offering amnesty to illegal immigrants. The vote was 46 to 53 in favor of limiting the debate.

Senators in both parties said the issue is so volatile that Congress is highly unlikely to revisit it this fall or next year, when the presidential election will increasingly dominate American politics.

A similar effort collapsed in the Congress last year, and the House has not bothered with an immigration bill this year, awaiting Senate action.

The vote was a stinging setback for Bush, who advocated the bill as an imperfect but necessary fix of current immigration practices in which many illegal immigrants use forged documents or lapsed visas to live and work in the United States.

It was a victory for Republican conservatives who strongly criticized the bill's provisions that would have established pathways to lawful status for many of the estimated 12 million illegal immigrants. They were aided by talk radio and TV hosts who repeatedly attacked the bill and urged listeners to flood Congress with calls, faxes and e-mails.

The bill would have toughened border security and instituted a new system for weeding out illegal immigrants from workplaces. It would have created a new guest worker program and allowed millions of illegal immigrants to obtain legal status if they briefly returned home.

And I guess the House members think they need a pay raise. I think they should wait until we get more of what the people they represent want done!

House Members Seek $4,400 Pay Raise

WASHINGTON (AP) - Despite low approval ratings and hard feelings from last year's elections, Democrats and Republicans in the House are reaching out for an approximately $4,400 pay raise that would increase their salaries to almost $170,000.

What bothers me most are the decisions that the conservative Supreme Court have passed. Their decisions will hurt our nation.

Here's what my Rep said on the floor of the House. Peter Roskam

Peter Roskam defeated Tammy Duckworth for Henry Hyde's seat in the House of Representative. You know I wished Tammy would have won. Now this double amputee's husband is off to Iraq. Sometime life just isn't fair!

Here's Mr. Roskam's words about Bush's surge plans:

Mr. SAM JOHNSON of Texas. Madam Speaker, I yield 4 minutes to Mr. PETER ROSKAM from Illinois.

Mr. ROSKAM. I thank the gentleman for yielding.

Madam Speaker, we are here to debate a House Concurrent Resolution, and the root verb of ``resolution'' is resolute. I just want to challenge the House today to consider the resolution of our enemies. I would like to read three quotes to you.

Resolved, by Samba bin Laden. The whole world is watching this war, and the two adversaries, the Islamic nation on the one hand and the United States and its allies on the other. It is either victory and glory or misery and humiliation.

Or how about this? Resolved, in the al Agenda charter: There will be continuing enmity until everyone believes in Allah. We will not meet the enemy halfway, and there will be no room for dialogue with them.

Or how about this, and I am paraphrasing: Resolved, from Samba bin Ladens deputy, who said that the plan is to extend the jihad wave; to expel the Americans from Iraq and extend the jihad wave to secular countries neighboring Iraq, clash with Israel and establish an Islamic authority.

Is there anybody among us who doubts the resolve and clarity with which our opponents are speaking? I don't.

I think what is lacking today in our conversation is the consequences of failure. The previous speaker used the words ``victory'' and ``success.'' He had a very low view of them, and I understand his characterization of those words. He said we have heard those words before. That is what the gentleman from New Jersey said.

But, do you know what? We will hear the word ``failure'' when it is used in the context of this challenge that is before us.

There is no question that there has been great difficulty that has gone before us in this fight. There is no question that there have been great mistakes that have been made, and I am wholeheartedly in favor of us acting as a coequal branch of government and calling for benchmarks and demarcation and holding the administration accountable for its decisions.

But if we fail in this, if we pull out, if we retreat, if we yield, what will happen? Is there anybody really who thinks that Iran, for example, will be less provocative? Is there anybody who thinks that al Agenda will be less provocative?

If we fail, extremism in this world, will it be ascendant or will it be descendant?

Madam Speaker, I close with a simple question, and that is, we need to ask, What is it about this resolution that will do one of two things? Does this encourage our troops, or does this discourage our enemies? I would suggest that this resolution, while it is serious, oh, it is very serious, it is not substantive. This is the ultimate expression of legislative passive aggression. It offers no substantive alternative.

Madam Speaker, I rise in opposition, and ask my colleagues to do the same.

Link

Bah!! More double speak!! And this man never served in any branch of the armed services! Just another Chciken Hawk playing a chess game with human lives!

Reid: Senate cloture vote on Iraq resolution this Saturday

From Think Progress:

Senate Majority Leader Harry Reid announced today that he will delay the Senate’s recess and hold a cloture vote on the Iraq resolution on Saturday. “Time is of the essence,” Reid said, and we are “determined to end the silence and find a new direction.”


Link

Senate Dems To Force Up Or Down Vote On Bush's War Plan
Washington Post | Shailagh Murray | February 15, 2007 01:41 PM

Senate Democratic leaders abruptly switched course in the Iraq war debate today, shelving a complicated non-binding resolution that has run into procedural hurdles, in favor of a House version that simply states Congress's objections to President Bush's troop escalation plan.

Majority Leader Harry Reid (D-Nev.) this afternoon announced that the Senate would take a rare Saturday vote on whether to proceed to consider the House resolution, which is expected to pass that chamber Friday, with some Republican support.

Read the entire article here.

Congress opened debate on the measure on Tuesday and is expected to vote by Friday. Read the Resolution Here.