More On Wiretapping

Thanks to many who responded to my request, particularly to commenter LITBMueller for this highly informed comment.

Starting off, Marty Lederman has explained the limitations of the six-month “sunset” clause much better than I did a few days ago:

Although section 6(c) provides that the operative provisions of the Act “shall cease to have effect 180 days after the date of the enactment of this Act,” i.e., on February 1, 2008, there is an express exception in section 6(d), which reads as follows:

AUTHORIZATIONS IN EFFECT.—Authorizations for the acquisition of foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration. Such acquisitions shall be governed by the applicable provisions of such amendments and shall not be deemed to constitute electronic surveillance as that term is defined in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)).

Thus, “acquisitions” authorized by Attorney General Gonzales will be permissible for one year, even if that period extends beyond the ostensible February 1, 2008 sunset date. I think it’s fair to assume that the Attorney General will authorize a system of such acquisitions on or close to February 1, 2008, which will mean that the warrantless surveillance can continue until . . . February 1, 2009, or twelve days after the next President is sworn in.

Next I asked who can and cannot be wiretapped? LITBMueller explained that “acquisitions” means more than just wiretaps:

[W]e’re talking about the government either obtaining phone records of past calls, or plugging into the system to listen as a call is made (more traditional wiretapping, but different in that this is with the compliance of the phone co., and not using a “bug” or listening device).

Plus, note that the bill refers broadly to “communications” – that leaves open the possibility of intercepting incoming, outgoing, or stored emails, faxes, and other data transmissions.

This post by Anonymous Liberal explains well how the bill expands the list of acceptable surveillance methods:

[T]he bill significantly narrowed FISA’s definition of “electronic surveillance.” Here’s what the amendment says:

Nothing in the definition of electronic surveillance under 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States.

Thanks to this carve out, many–if not most–intercepted communications between someone in the U.S. and someone in another country (even if that person is a U.S. citizen) are no longer considered “electronic surveillance.”

[…] Furthermore, the bill passed by Congress did not amend FISA’s criminal and civil liability provisions, which, like the exclusivity provision, are still tied to the definition of “electronic surveillance.” For instance, section 1809 of FISA makes it is a felony to “engage[] in electronic surveillance under color of law except as authorized by statute.” All of the other punitive provisions are similarly worded.

Therefore, as long as the government is engaged in “surveillance directed at a person reasonably believed to be located outside of the United States,” it cannot possibly run afoul of FISA’s criminal or civil liability provisions, even if it totally disregards all of the procedures and oversight requirements spelled out in the bill. There’s no penalty for non-compliance.

As I understand it, the most profound change in this bill comes from redefining a huge category of communications – anything involving someone “reasonably believed to be located outside the United States” – away from FISA jurisdiction. Marty Lederman has hosted a debate concerning whether the law opens up far more than that:

I’ve been arguing that the main problem with 105B is that it is touted as a check on the broad scope of section 105A, but in fact its safeguards are toothless. The Washington Post and others have, by contrast, suggested that 105B actually authorizes new forms of NSA searches, over and above those authorized by the very broad new section 105A.

[…] [A]s commenters such as Just an Observer, Anonymous Liberal and others have noted, even if I am right, there are at least two other possible important questions raised by 105B:

First, does 105B authorize types of “acquisitions” of information other than “contents” of communications, in a way that would previously have been prohibited by statutes other than FISA, such as the Communications Act, the Stored Communications Act, and the Pen Register Act? Its broad language (“Notwithstanding any other law . . . “) might be read to suggest as much. In other words, perhaps the evisceration of FISA is the least of it.

Second, even if 105B doesn’t authorize any activity that was previously prohibited, the compulsory service provisions do appear to vastly increase the ability of the NSA to enlist the service of many private parties to obtain information that once would have been difficult or impossible for NSA to acquire, thereby dramatically increasing the breadth of NSA surveillance as a practical matter.

Depending on how one reads the law ISPs, schools, telcoms and any other data carrier may have just become involuntary operatives in the government’s war on whoever it feels like wiretapping. Or maybe not. Lederman again (formatting mine):

More fundamentally, the fact that no one, not even those on the relevant congressional committees, appears to truly understand whether and to what extent 105B does either of these things, and what the exact relationship is between 105A and 105B, is perhaps the biggest problem of all with this legislation: Congress quite simply does not have any sense of what it has authorized — and therefore, of course, neither does the public.

Fortunately we can rest assured that this administration would never take advantage of legal ambiguity.

***

Regarding my next question, who approves?, the law clearly gives joint power over day-to-day management to the Attorney General and the Director of National Intelligence. The question of oversight, however, is more interesting. LITBMueller summarizes in his comment:

This, and other language, shows that the bill only require the DNI & AG to “reasonably believe” that the person who will be listened in on is outside the US.

[…] The highlighted language essentially makes the Senate’s participation in oversight completely optional, at the discretion of Administration officials. They don’t have to certify anything to Congress. And, anything they declare themselves to be an emergency, they can do the certification post hoc.

The certification then goes to the FISA court for review. And, remember, the belief that the subject is outside of the US only needs to “reasonable.” “Reasonableness” is a term of art in the law: if the government is held to a “reasonableness” standard, then it wins 9.95 times out out of 10. So, don’t expect the FISA court to question the government’s determination of reasonableness.

As far as I can tell nobody directly supervises the government’s activities. Rather AG Gonzales, under oath, writes up the methods that he plans to use and submits that to FISC for approval. Thank god Alberto Gonzales would never, ever perjure himself.

Now imagine that FISA improbably turns down a certification for failing to meet the astonishingly generous “reasonableness” standard. What happens then? Orin Kerr:

[U]nder Sec. 6(d), it will remain in effect pending appeal even if the FISA court strikes down the program as “clearly erroneous,” the FISA Court of Review agrees with the FISA court, and the case ultimately goes up to the Supreme Court. If you figure the time it would likely take for a certification to be made and the legality to be addressed all the way up to the Supreme Court, this pretty much means that no matter what the courts think the monitoring will go on until close to the end of the Bush Administration.

In sum, as near as I can tell, the administration essentially has a broad surveillance power that cannot be practically revoked. It allows the government to listen in on communications involving anybody speaking to someone who even might be a foreigner, and even that standard depends on the honesty of a serial perjurer. Even if said perjurer manages to submit an application so improbably awful that the FISA court says no, the wiretap can go on until the Supreme Court issues an opinion that says otherwise, which probably won’t happen until the president has already left office. Better, that only summarizes the clearly written parts of the bill. Depending on your interpretation the mysterious section 105b could make the foregoing seem minor.

I am having a hard time seeing how this bill is any different from allowing the Bush government to listen to any conversation, anywhere, without the smallest legal hazard.

Imagine for example that Gonzales decides to listen in on Nancy Pelosi’s office. Even if Gonzales doesn’t lie (who could tell if he does?) or submit a cleverly vague application, the FISA court lacks the power to stop a Pelosi tap. Rather, listening would go on until the Supreme Court eventually rules on the matter. The DoJ, of course, is responsible for pursuing the case through appeals and up to the Supreme court. I bet that they fast-track it. In the best case scenario the Supreme Court rules some time next year that Gonzales should stop listening to Pelosi’s phone calls. What happens then? Sorry, my bad. We’ll stop now.

And that is where things will remain until 2009. Imagining that a useful revision will clear a filibuster is higher fantasy than John’s elf sword. Science not yet invented numbers that can describe the Dems’ chances of overriding a veto.

Unless somebody can convince me that I (and many others) have the story completely wrong, the current Democratic leadership is dead to me. If I’m still blogging in 2009 my top priority will be to remove Pelosi and Reid from their leadership positions and hang this albatross around any Dems who voted for it. It should not sound overly idealistic to say that we can do better than this.

***Update***

Marty Lederman again:

Obviously, what happened is that the Democratic leadership decided not to insist that Democrats could vote only to allow warrantless foreign-to-foreign surveillance. Presumably, the Democrats could have simply voted in favor of the Democratic bill, giving the Administration what it professed to need, and sent that bill to the President for his veto. But the leadership chose not to instruct their caucus to do so. And no one has yet quite uncovered the story of why Speaker Pelosi and crew did not simply insist on that course of action.

Not. Leadership. Material.

***Update 2***

A New article from Risen and Lichtblau illustrates how Congressional Dems are freaking out about the new powers they just gave the government. It is a sign of the Democrats’ frantic retreat on this issue that their primary defense has become the idea that they rushed the bill and threw in a bunch of bogus new powers through some sort of proofreading error. I’m not kidding.

It is possible that some of the changes were the unintended consequences of the rushed legislative process just before this month’s congressional recess, rather than a purposeful effort by the administration to enhance its ability to spy on Americans.

“We did not cover ourselves in glory,” said one Democratic aide, referring to how the bill was compiled.

Leaving aside how surprisingly common criminal incompetence has become as a line of defense (cough, Gonzales), that line of reasoning just won’t fly. Democrats spent months negotiating and drafting a perfectly sensible compromise. The only reason they had to redraft the bill was because the Bushies dropped a pile of bullshit demands on them at the eleventh hour and the Dem leadership lacked the spine to do anything but pass the crap practically verbatim. They got rolled. Everybody down to the once-a-week TV consumer knows it; consequently it will shock me if this lame pseudo-defense survives the weekend.






42 replies
  1. 1
    myiq2xu says:

    This administration has never shown that they genuinely care about national security. Not once.

    Everything they do is intended to achieve, maintain and/or expand power.

    They laugh off or ignore serious breaches of security when it suits their purposes. Just ask Valerie Plame.

    So why are they so intent on this so-called “Terrorist Surveillance Program” that they keep pushing? Why the urgency of the “Enzo the Baker” incident?

    Why the continued secrecy about what they are doing and who they are doing it to? why the insistence on lack of effective oversight?

    They are spying on us, that’s why. US citizens, especially Democrats. But not just their “enemies,” they are spying on their “friends” too. Just like J. Edgar Hoover, they are collecting incriminating and/or embarrassing information on members of Congress, the press and others.

    Bet the rent on it.

  2. 2
    KC says:

    John,

    I am horribly disgusted by this bill and the cowardice of my own Senator, Diane Feinstein, who voted for it. She was the first Senator to make a big deal of the AG’s recent actions regarding the firing of federal prosecutors, yet she voted for this travesty that gives the AG more power. It’s absolutely disgusting and I will happily work for her primary opponent, even if it is Cindy Sheehan. How could she, or anyone in the Democratic Leadership, credibly complain about the AG now? It’s a joke.

    That said, what really scares me is the willingness by “small government” conservatives to shred the 4th amendment. The authoritarian streak in these people is so long and wide, that they make “big government” liberals look like Barry Goldwater. This bill is really shows the true make of the current GOP. After all, it would have never ever gone forward, at least in its current arrangement, if “small government” conservatives were really about smaller government. Digusting.

  3. 3
    KC says:

    Oops, I meant Tim.

  4. 4
    Tim F. says:

    That said, what really scares me is the willingness by “small government” conservatives to shred the 4th amendment.

    Conservatism died. If you want to understand politics today, just accept that the pod people who took over today’s Republican party would run Barry Goldwater out of town on a rail.

  5. 5
    KC says:

    If you want to understand politics today, just accept that the pod people who took over today’s Republican party would run Barry Goldwater out of town on a rail.

    So true, so true.

  6. 6
    Wilfred says:

    Thanks for the extensive research and well-structured post, Tim. This is how the end begins.

    I’m inclined to agree with myiq2xu. The details of this execrable law are public knowledge; I can’t imagine any potential threat resorting to electronic communication even before this law. Will the government have to reveal how and where it obtains information?

  7. 7
    Punchy says:

    Anyone thinking that the Dems know something we don’t? Perhaps they’re assured of a rout in 2008, and want the ability to tap the phones of crooked Republicans?

  8. 8
    Bruce Moomaw says:

    I’ve wondered about that myself. Remember how the Official Secrets Act is handled in Britain? Every party that’s out of power swears to repeal it — and then cancels those plans the instant it’s back in power, because it’s SO useful in covering up the scandals of the incumbent government. Just possibly we’re about to see both parties in this country reach a similar devil’s deal to permanently make the 4th Amendment effectively void from now on, for the benefit of whichever party happens to be in power at the moment.

  9. 9
    Bob Barbaque says:

    So,If I understand correctly,the Bush administration has now made what happened at the watergate hotel legal after the fact and the SCOTUS takes on the role of the Plumbers.
    I guess Turdblossom got what He wanted and cut out.

  10. 10
    matt says:

    Obviously, what happened is that the Democratic leadership..

    ..realized they’re a handful of months away from controlling the White House?

    I’m reminded of all those, “Would you support (this or that) if HILLARY were president??” arguments. I guess we’re going to find out, heh.

  11. 11
    ThymeZone says:

    If I’m still blogging in 2009 my top priority will be to remove Pelosi and Reid from their leadership positions

    Why? To put up stronger opposition to President Giuliani?

    It is going to be a Dem sweep in 2008. Fighting over the leadership is hardly the way to waste time at the start of the next congress. Nobody is going to give a damn about the summer of 2007 in January 2009.

    Sometimes bloggorrhea is so tedious.

  12. 12
    Tsulagi says:

    From what I understand, the admin privately briefed Congress that something big is afoot and we were all gonna die unless they voted for this bill. Chertoff’s gut is grumbling.

    Of course, not that our “honor and integrity” administration is capable of lying or even remotely exaggerating. Maybe Curveball once again provided the hard facts for this.

    Have to say I’m pretty disappointed in Jim Webb and others who voted for this crap.

  13. 13

    […] Tim F. at Balloon Juice gathers the threads of the latest journalism and analysis on the passage of the recent FISA bill. The bottom line is that, in practical terms, the executive can spy on anyone for any reason. The FISA court has been further neutered in two important ways: the grounds on which it can reject a program have been narrowed; and under the new process, a FISA rejection merely starts an appeal process during which the “rejected” program continues. […]

  14. 14

    Democrats: But we were scared!!!

    Some Democrats are waking up to the idea that the surveillance bill they hastily passed before going on vacation might not have been such a good idea. DUH!! The NYTimes is reporting is that the legislation may have given Bush more powers than he actual…

  15. 15

    As I’ve said elsewhere, alas, I don’t you understand the highly legitimate nature of what Bush is doing here.

    He’s operating on The Theory Of We Get To Do Whatever The Fuck We Want, and so he’s doing whatever the fuck he wants.

    Great work on this post, clarifying the sunset provision. Thanks.

  16. 16
    Randolph Fritz says:

    Perhaps re-running this (I first put it up in Avedon’s Sideshow) is appropriate:

    I can only stress that the Democrats are a US national party with a liberal wing, not a liberal party. The Republicans, unfortunately, no longer have a liberal wing. This makes the Democrats a better choice than the Republicans (usually), but it doesn’t, alas, make them my party.

    Work for electoral reform!

    And so it’s to strategy, and remembering who is worse. I wonder if Reid and Pelosi were blackmailed.

  17. 17

    Anyone thinking that the Dems know something we don’t? Perhaps they’re assured of a rout in 2008, and want the ability to tap the phones of crooked Republicans?

    So you’re saying that they may just be as scummy as the GOP, rather than being silly patsies. I hope that’s not supposed to be reassuring, though I grant it’s not outside the realm of possibility.

  18. 18

    Work for electoral reform!

    Right on.

    But you know, learning about even ballot access, let alone proportional representation and IRV, is too damn hard. And American Idol beckons!

  19. 19
    whippoorwill says:

    While reading this post, i had to pinch myself halfway thru to be sure i wasn”t dreaming. I keep fairly good tabs on what bills congress is dealing with and this came out nowhere, very strange indeed. I also got the impression that ‘scary’ and very well timed [right before august break]intel was provided to our wobbliest democrats ie..the ones that voted for this evil bill. Like Osama himself was about to parachute into D.C. with a big fucking bomb. Anyway, am i still hope i’m not awake.

  20. 20
    Dave says:

    It is going to be a Dem sweep in 2008. Fighting over the leadership is hardly the way to waste time at the start of the next congress. Nobody is going to give a damn about the summer of 2007 in January 2009.

    But they pissed away the 4th amendment for no reason. I have yet to hear even a conspiracy theory as to why they allowed this to pass.

    Fuck them. They were put into office to counteract Bush. They haven’t done shit with the exception of Reid who pulls out some parliamentary trick every once in a while for show.

    Why does the current leadership deserve to remain in place?

  21. 21
    ThymeZone says:

    Why does the current leadership deserve to remain in place?

    Heh. Well, this is America. No leadership ever deserves to remain in place. They should remain in place as it serves our interests, and as for my opinion on that, I already stated it upthread. In 2009, nobody will care about this.

  22. 22
    Dave says:

    They should remain in place as it serves our interests

    Like pissing on the 4th amendment? Appeasing the panty wetting right?

    In 2009, nobody will care about this.

    You’re probably right about this, the majority of dem voters will have forgotten. In the end though, if the Dems can’t stand up for protecting the foundation of this country, I don’t see them as any better than the GOP.

    People may forget about this, but I won’t.

  23. 23
    ThymeZone says:

    Like pissing on the 4th amendment? Appeasing the panty wetting right?

    I was thinking more along the lines of healthcare reform and a foreign policy that doesn’t treat a few ragheads in a cave as if they are the Evil Empire.

  24. 24
    Dave says:

    I was thinking more along the lines of healthcare reform and a foreign policy that doesn’t treat a few ragheads in a cave as if they are the Evil Empire.

    They are the majority and still cave to a president polling in the high 20s, what makes you think they’ll be able to pull of something complex like healthcare? That requires a spine, which they obviously don’t have.

    I cut them some slack when it came to getting us out of Iraq a few months back. While they have they technically have the majority in the Senate, I know it’s effectively 50-50. I also know that it was a battle that is best waged after Petraeus Bush give his report.

    However, this law didn’t need to be passed so quickly. They could have tabled it and actually, I dunno, read the fuckin’ thing over the break then come back and voted on it. Dems control the agenda. They let this go to a vote.

  25. 25
    VidaLoca says:

    Dems control the agenda. They let this go to a vote.

    Remember, the post you’re reading was put together over the last 10 days or so and posted on a Saturday afternoon by a part-time blogger who gets (in all probability) exactly $$squat for his time and effort, and whose day job has nothing to do with the matter about which he’s writing. He based his work on a probably ad-lib comment by a reader who evidently has some expertise, but also gets $$squat for putting up his thoughts. He pulls in some work by Marty Lederman, who also is likely blogging pro bono and certainly isn’t getting paid what his stuff is worth. And it’s not just here, the folks at Last Hurrah had some material up last week IIRC that wasn’t as concise as this post but was just as damning. And I didn’t even look at what Greenwald or Digby put up but it’s probably useful, they’re smart like that. All done by a bunch of part-timers.
    The lesson: it’s not hard to figure out that there are serious problems with this law that go to the question of whether it’s worth pretending that we have a Bill of Rights any more.

    Meanwhile the people we pay to keep an eye on this shit just roll over like a bunch of dumbasses and vote to give incredibly enhanced powers to the most corrupt, venal bunch of clowns the country has seen in hundreds of years because they’re frightenend? because they’re in a rush to go on vacation? because they’re afraid that they’ll be called “soft on terror” and lose the chance at power they see almost within their grasp? WTF?? Damn right they “control the agenda” but what’s the point if they don’t use the power they’ve got, particularly when we really, really need them to use it?

    Seriously, let’s run Tim for Senate. He’s shown he can figure this stuff out, and Reid and Pelosi have shown they can’t. They’re full-timers. Paid serious money. This is their fucking job.

    They could have tabled it and actually, I dunno, read the fuckin’ thing over the break then come back and voted on it.

    Well, like, duh… And now they’ve realized they fucked up big time and they’re wetting their pants.(1)

    Great. Just great. Thanks an awful lot for all of your hard fucking work. Of all of the elements of the current situation that make it a crisis, one of the worst is that the only vehicle we have around which to organize an opposition to the party in power is essentially a bunch of low-competence, opportunistic asshats. With, as noted above, a vaguely liberal (but not noticeably more competent) wing.

    Not. Leadership. Material.

    (1)OK that part about running Tim for Senate — that wasn’t really serious.

  26. 26
    ThymeZone says:

    what makes you think they’ll be able to pull of something complex like healthcare?

    One, they will be approaching a supermajority, or have one, with a Dem president in the White House, and Two, as I said, nobody will care about the topic of this thread in January 2009.

    For all the ranting going on here, the fact is that the size of the 2008 victory is far and away more important than whether a bad law stays in effect for a while longer.

    You have a two party system. One of them is called the Republicans. Which one of them do you want to spend your energy being pissed at for the next year as a critical election is approached? Think it over.

    Did I mention, the other party is the Republicans?

  27. 27

    […] More On Wiretapping […]

  28. 28
    Randolph Fritz says:

    But they pissed away the 4th amendment for no reason.

    It was already pretty much gone; the Supreme Court gutted it to protect the drug war, with Scalia, IIRC, writing some of the worst decisions.

    For all the ranting going on here, the fact is that the size of the 2008 victory is far and away more important than whether a bad law stays in effect for a while longer.

    But who’s to say the law will be left to sunset? It’s not like the Democrats are immune to the blandishments of power (well, maybe Al Gore). It’s possible there’s some grand strategy at work here, but if so it’s the work of aristocrats; us hoi polloi will be told after it succeeds. There are two issues, really: first, dealing with the right-wing crazies, and, second, being a democratic county. I’ll be glad if the right-wing crazies lose power–what sensible person wouldn’t?–but I also want to live in a democracy, and that seems to me the harder task.

  29. 29
    VidaLoca says:

    the size of the 2008 victory

    TZ, everybody here gets this. I don’t see anybody lacking the basic understanding that the correct thing to do in 2008 is vote for the Democrats. Nobody (well, except maybe for John the other day and I don’t really think he was being serious) is arguing for voting for Nader or some other such silly-assed thing. There’s really no other choice so we have to suck it up and deal.

    Look, the reason the Bill of Rights was enacted after the Constitution was ratified was that a lot of the Founders back then had seen enough of unchecked state power in the hands of unscrupulous people, and they were afraid of it. And it turns out that history has proven those concerns to be justified. So when these clowns toss an important piece of it out the window for no fucking good reason at all I get a little upset because the consequences go way beyond the next election. It’s not about the “two-party system” it’s about Bush and Cheney and Gonzalez vs. the damned Constitution, and these sorry-assed people that we voted for to keep their eyes on that shit couldn’t take the time to read the fine print in the law before they went on vacation so now they’re whinging about it? WTF?

    You want to talk about health care reform — certainly we all remember how it went down the last time they got a bite at that apple: they got rolled, but good. If they vote this stupid on something that’s this obvious, why do you think they’ll do any better on something that’s actually, you know, complicated — supermajority or none?

  30. 30
    ThymeZone says:

    But who’s to say the law will be left to sunset? It’s not like the Democrats are immune to the blandishments of power (well, maybe Al Gore).

    Well, the point is well taken, we have to come back and clean up after these guys. I think you are suggesting that it’s possible that the Dems will fail to do a thorough cleanup. And they might. But I’m not sure that a complete rollback in the wiretapping context is what we are going to see, and in fact, I suspicion that we’ll see an expansion of intrusion over time.

    That’s because it feels to me — and I am very proud to say, IANAL — like we are going to be exploring the boundaries of privacy in the years to come and that privacy is going to get eroded. I think this because it feels to me like the whole “right to privacy or expectation of privacy” matter is unsettled and getting more, and not less, complicated.

    What’s of more interest to me is the protection of process, more so than the pure protection of privacy. If process is rigged to protect rights, then the erosion of privacy by itself is not as threatening to me. I’m more concerned about the right to representation, habeus corpus, imprisonment by executive fiat … than I am about whether govt satellites can see into my backyard, if you get my drift.

    I don’t share the concern that wiretapping is the great threat to freedom that it’s taken to be. I have assumed that someone else can hear my phone calls since I was in knee pants, and I assume that anyone can read my emails, and I don’t have a big problem with it. It’s process and the rules of evidence that I worry about a lot more.

  31. 31
    ThymeZone says:

    If they vote this stupid on something that’s this obvious, why do you think they’ll do any better on something that’s actually, you know, complicated—supermajority or none?

    Everything on the Hill is about counting votes.

    That’s why you don’t have a flag burning amendment and a Defense of Marriage amendment, despite a GOP stranglehold on govt for a number of years. The votes are not there.

    The republic is not a democracy, it’s a republic, that’s how it works. Slowly, ponderously. It’s intractable, and clumsy. We are lucky that it is so.

    The great government thing in the 20th century was progressive law, but it was brought about by a prolonged worldwide catastrophe called the Great Depression. I don’t think people today have any idea how big a deal that was. Without a driver of that magnitude, and without a 3 or 4-term president, not sure you can ever get that kind of action again. You sure aren’t going to get it now.

    One thing at a time. Wiretapping is small potatoes, I think, compared to the big issues coming to a theater near you in the years ahead.

  32. 32
    TenguPhule says:

    It’s process and the rules of evidence that I worry about a lot more.

    No Offense TZ, but both of those got shit on during this whole Illegal Wiretap fuss and probably before that too.

    The precedents being set now are bad ones and will haunt us all for a very long time.

  33. 33
    Dave says:

    The precedents being set now are bad ones and will haunt us all for a very long time.

    Yup. That’s what worries me. It’s easy to give up your civil rights, it’s impossible to get them back.

  34. 34
    VidaLoca says:

    Everything on the Hill is about counting votes.

    Uh-huh. And if this were a discussion about votes on a piece of legislation (for example, the vote on continuing funding for the war earlier this spring, where you were making an argument similar to this one that I thought was somewhat persuasive) it would be one thing. But it’s not. It’s a lot bigger than just legislation:

    It’s easy to give up your civil rights, it’s impossible to get them back.

    Exactly.

    we are going to be exploring the boundaries of privacy in the years to come and that privacy is going to get eroded. I think this because it feels to me like the whole “right to privacy or expectation of privacy” matter is unsettled and getting more, and not less, complicated.

    If it was “just” privacy it would be bad enough, but we are going to be exploring the relationship between the citizens and the state in the years to come — and the citizens just took a big hit on this one, thanks to the fact that the people we were hoping would come through for us were asleep at the switch. And they know it.

  35. 35
    LITBMueller says:

    He based his work on a probably ad-lib comment by a reader who evidently has some expertise, but also gets $$squat for putting up his thoughts.

    Tim sent me his autograph and a coupon for a free medium fries at McDonalds.

    Just kidding…

    Seriously, just think back to that comment by Conyers to Michael Moore in Farenheit 9/11, when they were discussing how something as odious as the Patriot Act could get passed without debate:
    “We don’t read the bills, my son!”

    Or something like that… And that’s a fact! They never read them, and the staff MAY read them half the time. But, the political considerations outweigh the legal considerations every time.

    Just think: if nobody criticized this bill after it was signed, then Pelosi, Reid, et al., would never say a peep about changing it!

  36. 36
    VidaLoca says:

    think back to that comment by Conyers to Michael Moore … “We don’t read the bills, my son!”

    The folks at The Last Hurrah have some coverage up on the means by which the votes got counted as the congresscritters ran for the exits. See here and here.
    In the latter, note particularly the comment by reader “pow-wow”.

    Conyers does not cover himself with a lot of glory in these accounts.

  37. 37

    […] Well, there is a real shock. At least one person does understand it- Glenn Greenwald. It really isn’t rocket science. Hell, Tim is going to do what he can to get Pelosi and Reid fired in 2009. […]

  38. 38

    […] Then again, that kabuki only worked when Republicans held a modest majority in both houses. No doubt the GOP was as surprised as the rest of us to find out that the whole enterprise was completely unnecessary. […]

  39. 39

    […] B-b-but! Doesn’t Congress have a lower approval rating than Bush? Yes indeedy. People hate Congress because, like me, they expected a hell of a lot more when we elected them in ‘06. To get a sense of how deep Democratic disaffection with our Congress runs, grok the fact that Congress has a higher approval among Republicans than Democrats. And why not? Frist and Hastert delivered less on unrestricted government spying than Reid and Pelosi. […]

  40. 40

    […] B-b-but! Doesn’t Congress have a lower approval rating than Bush? Yes indeedy. People hate Congress because, like me, we expected a hell of a lot more when we elected them in ‘06. Think about what it means that Congress has a higher approval among Republicans than Democrats. And why not? Frist and Hastert delivered less on unrestricted government spying than Reid and Pelosi. […]

  41. 41

    […] Kevin sums it up. Also see recent leadership polls for Harry Reid and Nancy Pelosi over at Kos. Right now Democrats hate their leaders as much as Republicans do, and the reasons just aren’t that hard to figure out. They got rolled on wiretapping American citizens, they have no plan for getting ahead of the mortgage meltdown and on most days crucial committee members like Rockefeller and Feinstein act more like their craven predecessors than Democrats. They can’t being themselves to pass any funding bill except what the president asks for and in his words. […]

  42. 42

    […] I don’t have any particular beef with Erick and RedState, and even if I disagree with practically every post I respect what they’re trying to do. It seems to me that they’re up against an institutional disadvantage that runs deeper than just having to defend government rather than criticize it. With luck some years in the wilderness will improve Republican leadership the way it (sort of) did for the Democrats. It will only be good when when the party treats well-intentioned members trying to effect change from the inside like a squeaky wheel rather than like an unhammered nail. […]

Trackbacks & Pingbacks

  1. […] I don’t have any particular beef with Erick and RedState, and even if I disagree with practically every post I respect what they’re trying to do. It seems to me that they’re up against an institutional disadvantage that runs deeper than just having to defend government rather than criticize it. With luck some years in the wilderness will improve Republican leadership the way it (sort of) did for the Democrats. It will only be good when when the party treats well-intentioned members trying to effect change from the inside like a squeaky wheel rather than like an unhammered nail. […]

  2. […] Kevin sums it up. Also see recent leadership polls for Harry Reid and Nancy Pelosi over at Kos. Right now Democrats hate their leaders as much as Republicans do, and the reasons just aren’t that hard to figure out. They got rolled on wiretapping American citizens, they have no plan for getting ahead of the mortgage meltdown and on most days crucial committee members like Rockefeller and Feinstein act more like their craven predecessors than Democrats. They can’t being themselves to pass any funding bill except what the president asks for and in his words. […]

  3. […] B-b-but! Doesn’t Congress have a lower approval rating than Bush? Yes indeedy. People hate Congress because, like me, we expected a hell of a lot more when we elected them in ‘06. Think about what it means that Congress has a higher approval among Republicans than Democrats. And why not? Frist and Hastert delivered less on unrestricted government spying than Reid and Pelosi. […]

  4. […] B-b-but! Doesn’t Congress have a lower approval rating than Bush? Yes indeedy. People hate Congress because, like me, they expected a hell of a lot more when we elected them in ‘06. To get a sense of how deep Democratic disaffection with our Congress runs, grok the fact that Congress has a higher approval among Republicans than Democrats. And why not? Frist and Hastert delivered less on unrestricted government spying than Reid and Pelosi. […]

  5. […] Then again, that kabuki only worked when Republicans held a modest majority in both houses. No doubt the GOP was as surprised as the rest of us to find out that the whole enterprise was completely unnecessary. […]

  6. […] Well, there is a real shock. At least one person does understand it- Glenn Greenwald. It really isn’t rocket science. Hell, Tim is going to do what he can to get Pelosi and Reid fired in 2009. […]

  7. […] More On Wiretapping […]

  8. Democrats: But we were scared!!!

    Some Democrats are waking up to the idea that the surveillance bill they hastily passed before going on vacation might not have been such a good idea. DUH!! The NYTimes is reporting is that the legislation may have given Bush more powers than he actual…

  9. […] Tim F. at Balloon Juice gathers the threads of the latest journalism and analysis on the passage of the recent FISA bill. The bottom line is that, in practical terms, the executive can spy on anyone for any reason. The FISA court has been further neutered in two important ways: the grounds on which it can reject a program have been narrowed; and under the new process, a FISA rejection merely starts an appeal process during which the “rejected” program continues. […]

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