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Civil Liberties: Restoring the Law

The Restore Act would begin to bring back into balance the need for security and liberty in the government's surveillance efforts.

OCTOBER 10, 2007 by Faiz Shakir, Amanda Terkel, Satyam Khanna,
Matt Corley, Ali Frick, and Jeremy Richmond
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CIVIL LIBERTIES

Restoring the Law

Yesterday, House Judiciary Committee Chairman John Conyers (D-MI) and House Intelligence Committee Chairman Silvestre Reyes (D-TX) introduced the Restore Act, a bill aimed at bringing back into balance the need for security and liberty in the government’s surveillance efforts. Indeed, there is much to restore after the Bush administration and Congress swiftly eviscerated many of the central oversight and warrant requirements contained in the Foreign Intelligence Surveillance Act (FISA) with the passage of the Protect America Act (PAA) just prior to the August recess. The PAA provided an “unnecessary and dangerous expansion of President Bush’s powers,” essentially allowing the administration to conduct temporary “oversight-free surveillance” on individuals who are not suspected of being terrorists. The Restore Act is a “major step in the right direction” because it requires “that electronic surveillance programs be approved by the Foreign Intelligence Surveillance Act (FISA) Court,” mandates that “FISA warrants be obtained when the administration wants to undertake surveillance of persons in the U.S.,” and ensures “FISA is the exclusive means of electronic surveillance and that no modifications can be made without express legal authorization.”

OVERBLOWN CONCERNS OF CAPITULATION:
Yesterday morning, prior to Conyers and Reyes’s announcement, The New York Times reported that Democrats were expected to make “concessions…on wiretapping.” In fact, it was a misleading title, implying the House bill was a “capitulation.” It is not. “The Restore Act, as currently drafted, crafts a careful balance between security and freedom and it makes clear that FISA is the law of the land,” said Rep. Jerrold Nadler (D-NY), chair of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. Moreover, the bill does not give a free pass to the White House’s prior wrongdoing; instead, it compels the Justice Department to “to reveal to Congress the details of all electronic surveillance conducted without court orders” since 9/11. “If President Bush is serious about protecting our nation and preserving the Constitution, he will support the Conyers-Reyes bill,” Nadler said. But the White House has already sounded its opposition. “It looks like the legislation is a step backwards from the Protect America Act,” White House spokesman Tony Fratto said. 

BLANKET’ ORDER: “If the government wants to eavesdrop on a foreign target or group of targets located outside the United States, and there is a possibility they will be communicating with Americans, the government can get an ‘umbrella’ or ‘blanket’ court order for up to one year.” In a statement issued yesterday, the American Civil Liberties Union (ACLU) expressed concern about this provision, calling it a “major flaw” and urging Congress to “include individual warrants for Americans.” Rep. Rush Holt (D-NJ), a member of the House Intelligence panel, introduced the “FISA Modernization Bill of 2007” yesterday which eliminates the “blanket” warrants provision. While a “blanket” order does not and cannot provide the same level of protection for the international communications of innocent Americans as can an individualized order, the Restore Act substantially reduces the likelihood that the government will abuse its powers by installing layers of checks and balances. The bill would authorize court reviews of how the agencies choose their targets, “minimiz[e]” irrelevant information, and establish guidelines to make sure traditional warrants are being obtained when necessary. 

TELECOM IMMUNITY: The Restore Act does not provide retroactive immunity for telecommunications companies that cooperated with the administration’s warrantless surveillance. “The Bush administration, urged by the telecommunication industry, is pushing hard for Congress to include immunity for past actions in any package to protect them from a series of civil suits.” The pending lawsuits fault the telcom companies for participating “in what amounted to illegal eavesdropping.” For years, many telecom giants, including AT&T, gave the National Security Agency “direct access to their databases of communications records” at a time when the administration was carrying out a secret program that violated the FISA law. Under the Stored Communications Act, the telecom companies could suffer a $1,000 penalty for each violation, making the industry liable for tens of billions of dollars. Immunity would absolve the companies of their wrongdoing, but more importantly, as Reason magazine’s Julian Sanchez has noted, “[I]f they’re immune from liability after the fact, then they have no motivation to do anything but comply [with the administration’s demands].” Rep. Steny Hoyer (D-MD) indicated that telecom immunity should hinge on the administration’s complicity in turning over the records showing the utilities’ role in the eavesdropping. Without the records, “to give immunity at this point in time would be a blind immunity,” Hoyer said.

UNDER THE RADAR

TERRORISM —  JUDGE BLOCKS BUSH TRANSFER OF GUANTANAMO PRISONER THAT ‘AMOUNTS TO DEATH SENTENCE’: Yesterday, in a blow to the Bush administration, “a federal judge blocked the Pentagon from transferring a Guantanamo Bay detainee to Tunisia, where he allegedly faces torture.” Judge Gladys Kessler ruled that sending Mohammed Abdul Rahman back to Tunisia to face torture and possibly death would do “irreparable harm” and “would be a profound miscarriage of justice.” Jennifer Daskal of Human Rights Watch noted the significance of the ruling, saying, “This is the first time since Congress tried to strip court jurisdiction over detainees that a court stepped in and said to the administration, ‘Hey wait. You can’t do what you say you want to do.'” This recent decision “could lead to similar requests from detainees facing transfer to countries with spotty human rights records, possibly putting the U.S. government in the difficult position of having to hold people at Guantanamo indefinitely even after the military has cleared them for transfer or release.”

CONGRESS — LIEBERMAN SHOWS ‘LITTLE INTEREST’ IN OVERSIGHT OF CONTRACTORS
: House Oversight Committee Chairman Henry Waxman (D-CA) has held eight separate oversight hearings on Iraq and war contracts, but according to Roll Call, Sen. Joe Lieberman (I-CT) has had “relatively little interest” in “potential waste, fraud, abuse and misconduct among government contractors.” He has held only one hearing on both the Iraq and Afghanistan reconstruction efforts. In 2003, Lieberman called for the Senate Committee on Homeland Security and Government Affairs to hold hearings on all post-war Iraq contracts, saying he was “concerned about the secretive and non-competitive procedures.” But now as chair of the committee, he has left such oversight to Waxman. “You’ve got to set your own priorities, and it was clear to me that other committees were going to pick up on this,” Lieberman said. “He supports the war. So why does he not investigate the things that undermine the mission?” asked Charlie Cray, director of the nonpartisan watchdog Center for Corporate Policy.

ADMINISTRATION — CHARLIE SAVAGE: CHENEY PLOTTED BUSH’S IMPERIAL PRESIDENCY ‘THIRTY YEARS AGO’: The Bush administration has long held that President Bush’s expanded executive power is justified because of 9/11. “I believe in a strong, robust executive authority and I think that the world we live in demands it,” claimed Vice President Cheney in 2005. But in his new book, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Boston Globe reporter Charlie Savage reveals that Cheney has been on a 30-year quest to implement his views of unfettered executive power. For example, in a report authored in 1987, Cheney and aide David Addington defended President Reagan in the Iran-Contra affair by claiming it was “unconstitutional for Congress to pass laws intruding” on the “commander in chief.” Decades later, Bush’s legal team used their first meeting in Jan. 2001 to map out a plan to expand presidential authority. According to Savage, who appeared on C-SPAN’s Washington Journal yesterday, Cheney was looking for a moment to “seize” power in the weeks before 9/11. “We are going to expand presidential power in any way we can. This was discussed in January 2001 at the first meeting of the White House legal team after the inauguration, long before 9/11,” observed Savage. Previously, Savage won a Pulitzer Prize for his seminal work exposing President Bush’s abuse of signing statements.

THINK FAST

“Federal investigators are hinting that a fresh wave of campaign-related theft and corruption investigations of Members of Congress are moving through the pipeline, signaling that indictments may be on the horizon.”

During last night’s CNBC Republican debate, moderator Chris Matthews asked Mitt Romney whether he would get congressional approval “to take military action against Iran.” Romney replied that he would let his lawyers figure it out: “You sit down with your attorneys and tell you what you have to do.”

Responding to smears and intrusions into her family’s private life by conservatives, Bonnie Frost, whose 12-year old son Graeme recently delivered a radio address supporting SCHIP expansion, said, “We stood up in the first place because S-chip really helped our family and we wanted to help other families.” 

At least 12 racial incidents have been reported across the country since the case of the “Jena Six.” Echoing the nooses hung on a tree by white students that raised tensions in Jena, “most of the dozen occurrences in the past two months involved a noose left anonymously at a school or workplace.” Yesterday, a noose was found on a professor’s door at Columbia University.

21: Number of countries, including the United States, who still belong to the U.S.-led coalition in Iraq. Forty-nine nations were originally part of the coalition.

“The opening of the mammoth new U.S. Embassy in Baghdad has been delayed indefinitely while its Kuwaiti contractor fixes a punch list of problems.” The embassy “was set to open last month but U.S. lawmakers say shoddy work by the contractor and poor oversight by the State Department have delayed it.”

And finally: House Speaker Nancy Pelosi (D-CA) has some new neighbors. Anti-Bush protesters have “engaged in decidedly non-neighborly behavior like hanging their clothes from the trees; moving in sofas, chairs and other ‘permanent living facilities’; and, oddly, building a large Buddha on the sidewalk in front of her home.” “You can just imagine my neighbors’ reactions to all of this,” she said.

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GOOD NEWS

By a vote of 375-3, the House passed the War Profiteering Prevention Act yesterday, which makes “overcharging in order to defraud or profit excessively from war, military action, or reconstruction efforts…a felony.”

STATE WATCH

ALABAMA: Alabama now boasts its “first openly gay man elected to public office.”

WASHINGTON: “Seattle now recycles 44 percent of its trash, compared with the national average of around 30 percent.” Its goal is to reach 72 percent by 2025.

MISSISSIPPI: Federal government may buy 17,000 coastal homes to create a “vast hurricane protection zone,” raising anxieties that it could destroy the lives of residents struggling to rebuild after Katrina.

BLOG WATCH

THINK PROGRESS: Rep. Dana Rohrabacher (R-CA): Blackwater CEO Erik Prince is “an American hero just like Ollie North was.”

BRAD BLOG: Justice Department Voting Rights chief: minority voters “don’t become elderly, they die first.”

EZRA KLEIN: Conservatives complain about a 12-year old supporting SCHIP, but were silent about the use of a child in a 2004 campaign ad supporting President Bush.

SADLY NO: Debunking the National Review’s Jonah Goldberg’s defense of his claim that conservatives never question the patriotism of liberals.

DAILY GRILL

“I don’t think they’ve gotten anything done.”
— House Minority Leader John Boehner (R-OH), 3/21/07, on the 110th Congress

VERSUS

“The House last week held its 943rd roll call vote of the year, breaking the previous record of 942 votes, a mark set in 1978. … Last year, the Republican controlled House held 543 votes.”
— The Politico, 10/9/07