Tuesday, September 11, 2007

Harman Pre-Emptively Negotiates Away Our Constitional Rights

UPDATE: The Democratic bill, I should have noted, also would also have damaged FISA. However, what Harman advocates would make things worse and tie up Congress to no end.

Jane Harman is fast out of the box on the "FISA fix" she wants to pass. She now has laid out her thinking in an article in Politico.

It starts good -- here's my summary of her points:
Republicans conducted a "well-orchestrated campaign" to talk up an imminent attack in the US, specifically a attack in the Capitol. This despite the fact the DC attack was discredited.

Republicans falsely claimed that FISA did not allow foreign-to-foreign communications by terrorism suspects. As part of this effort, the Dir. of National Intelligence lied about this directly to key Senate and House committee members and leadership.

There was a more responsible narrower effort offered by Democrats which would have solved the problems with FISA. The good news is that the over-broad law sunsets in six months.
OK, good so far. Dems were tricked into voting away Americans' constitutional rights, she suggesting.

Surely, then, Harman's going to say that the Congress should simply bring up for a vote and pass the responsible Democratic bill it was tricked out of passing in the first place, right? (She doesn't mention this, but this bill was actually negotiated to satisfaction with DNI McConnell before Bush and Republicans reneged)

Surely Harman would use the sunset provision to turn the heat on Republicans and Bush, right?

Sadly, no.

Harman instead advocates that Democrats should saddle themselves with the obligation of crafting a new bill that must get the Aye votes from at least 15(!!) Republican Senators and 55(!!!) Republican Representatives to overcome a likely Presidential veto.
Now comes the challenge: to craft a FISA law that enjoys overwhelming support and replaces the “blank check to Gonzo” that Congress provided just weeks ago. Can the White House be persuaded to negotiate a new law? Not if the wedge politics it played last month persist. But I believe Congress could be persuaded to [negotiate a new law] — and to pass it with veto-proof majorities in the House and the Senate.
The Democrats’ challenge on FISA is to move promptly to a proposal we and enough Republicans can support, so that the White House, with or without Rove, cannot jam another wedge between us.

So Harman really thinks that by placing Democrats under the gun (remember, it's our responsibility to pass this, not theirs) that Republicans are going to do anything but delay on this to ensure it becomes another last minute crisis? Who's she kidding? And in any case, when you have only a handful of Republicans outside of the Bush Rubber-Stamper Club, this endeavor would be impossible anyway.

But in Jane Harman's mind, this is achievable because Republicans in Congress never meant any harm, despite their votes for the bill. Only the president and bogeyman Karl are worthy of blame here, not the lockstep support of Republicans in congress who passed this bill in the first place.
During the debate on FISA, numbers of Republicans expressed discomfort with the broad new grant of authority in the McConnell bill. [Ed: Yes, they shrieked in horror as they voted Aye on the bill]

As long as “foreign intelligence” is the standard, virtually any communications are fair game — the only limits being post-action audits in which the executive branch essentially polices itself. In other words, many Republicans now worry that they gave away the Fourth Amendment, a bulwark against the “big government” they so detest.

Really, I'm so glad that Jane Harman can share with us the thoughts of these troubled Republicans. They really are for the constitution after all and never meant to take away our civil liberties. It's bipartisan to assume the best about members of the other party even when they vote the worst, right?

Then we hear from Harman that Democrats would have been playing into Republicans hands had they not let this bill pass.
The Democrats’ challenge on FISA is to move promptly to a proposal we and enough Republicans can support, so that the White House, with or without Rove, cannot jam another wedge between us. Clearly, it was Rove’s intent to make the recent vote on FISA grist for negative campaign ads in the 2008 cycle, but Democrats denied him that ammo.
Ha Ha Karl, you thought we would defend the Constitution and defeat this bill, but we didn't. Tricked you!

And then we get to Jane Harman's proposal for this new bill she wants. Amazingly, her proposed bill, freely offered after due consideration on her part, manages to shred the Constitution even worse than the bill Republicans forced down Democrats throats under duress, through lies, betrayal and false threats of imminent terorist attacks on the Capitol! Quite an accomplishment, I must say.

Here's a summary of what Harman thinks the bill should have in it...

Congress should craft a bill that:

*provides "narrowly drawn" retroactive immunity to telcos from liability to illegally turning over phone records without a warrant (something not even the 'over-broad' Republican bill provides);

*preserves prospective immunity for telcos but requires a warrant from a judge (see note below)

*requires it to be made clear that the bill doesn't authorize indiscriminate data mining; and,

*requires that the Fourth Amendment still apply to all Americans

Note: An important note on the prospective immunity being forced to have a judge's warrant: Harman undermines that requirement by allowing warrants to be issued for very broad surveillance objectives instead of actual surveillance targets which would give the telcos "the clarity and legal certainty they desire", as Harman puts it, in turning over requested documents.

Isn't there any higher priority that giving immunity retroactively to companies who conspired illegally with our government to spy on us?



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