July 9, 2008

A Day of Mourning — And Anger [12:01 pm]

Want to know how to lose an election? Pretend your base will vote for you no matter what. The problem is not that the disaffected will vote for the opposition — they just won’t vote at all because, in the end, what difference does it really make? *sigh* Today’s cover-up of surveillance crimes and Barack Obama

[T]oday, the Democratic-led Congress — with the support of both John McCain and Barack Obama, neither of whom will even bother to show up and vote — will cover-up those crimes. Law Professor and Fourth Amendment expert Jonathan Turley was on MSNBC’s Countdown with Rachel Maddow last night and gave as succinct an explanation for what Democrats — not the Bush administration, but Democrats — will do today. Anyone with any lingering doubts about what is taking place today in our country should watch this:

As Turley says, and as I’ve written many times over the last two weeks, what is most appalling here beyond the bill itself are the pure falsehoods being spewed to the public about what Congress is doing — and those falsehoods are largely being spewed not by Republicans. Republicans are gleefully admitting, even boasting, that this bill gives them everything Bush and Cheney wanted and more, and includes only minor changes from the Rockefeller/Cheney Senate bill passed last February (which Obama, seeking the Democratic Party nomination, made a point of opposing).

Rather, the insultingly false claims about this bill — it brings the FISA court back into eavesdropping! it actually improves civil liberties! Obama will now go after the telecoms criminally! Government spying and lawbreaking isn’t really that important anyway! — are being disseminated by the Democratic Congressional leadership and, most of all, by those desperate to glorify Barack Obama and justify anything and everything he does.

Thomas’ summary for H.R.6304

Later: Congress votes to immunize lawbreaking telecoms, legalize warrantless eavesdropping; Senate Backs Wiretap Bill to Shield Phone Companies

I think the worst thing about this, and the real long term problem for the Democratic Party, is that, up until today, they had deniability — they could always say that they hadn’t been given the whole story or were steam-rollered or were lied to. But no Democrat who voted for this bill has that excuse this time around. Instead, we have been treated with the spectacle of watching the Party leadership lie to themselves (and, by the way, to their constituents) to satisfy political expediency. Given that kind of intellectual and ideological dishonesty, I am left with this ugly question — what’s the difference between someone who is opposed to my political ideology and someone who shares my political ideology, but won’t act on it? Who’s the more honest actor?

Ah, well — time to give money to the ACLU and the EFF so they can continue the fight. And, see ; Constitutional Drift: Obama Veers to the Right, But Does He Need to Take the Constitution With Him?.

Later: more fallout: Was Obama’s FISA vote “calculated?”; The Audacity of Listening; Democrats take Obama shift in stride (pdf); Democrats’ strategy: Strength through bowing; Interview with ACLU re: constitutional challenge to new FISA law; Betrayed by Obama. From the last one:

Of course, the only thing more offensive than Obama’s yes vote on FISA was McCain’s decision to skip the vote entirely — and then trash Obama for “flip-flopping” on FISA. Unfortunately, Obama did flip-flop on FISA, but McCain didn’t bother to show up. So far, this has been a really dispiriting campaign. Part of the problem, I think, is that the two finalists are guys beloved by the media, who’ve had a fairly free ride to here. With their rivals out of the way, they’re getting more scrutiny, and it’s not all adoring. Having won impressive underdog victories, neither campaign seems ready for prime time. I know one thing, I’d really like to vote for the guy who said this:

“This Administration has put forward a false choice between the liberties we cherish and the security we demand. When I am president, there will be no more illegal wire-tapping of American citizens; no more national security letters to spy on citizens who are not suspected of a crime; no more tracking citizens who do nothing more than protest a misguided war. Our Constitution works, and so does the FISA court.”

Too bad Obama doesn’t believe that anymore.

Later — the letters to the NYTimes editor are pretty striking, too — The Day of the New Surveillance Law

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Privacy Hearing Today [8:45 am]

Privacy Implications of Online Advertising

Individuals and businesses are becoming increasingly dependent upon the Internet for social, entertainment, research and business activities. This has created the incentive and opportunity for companies to collect, use, and disseminate data regarding online users. There is concern, however, that tracking individuals’ Internet activity and gathering information from online users violates their expectations of privacy. Individuals often are unaware what information is being collected about them, how it is being used and to whom it is disseminated.

In this hearing, the Committee will consider the current state of the online advertising industry and that market’s impact on users’ privacy. Witnesses are expected to focus on the key factors driving online behavioral advertising, the methods of online behavioral advertising employed by industry, and the protections the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) should adopt to protect consumers from unwanted or unnecessary invasions of their privacy.

Also Congress studies how people track your online use (pdf); Ad-Targeting Companies and Critics Prepare for Senate Scrutiny

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Why Abuse of State Secrets Privilege Is So Terrifying [7:06 am]

A distressing writeup by a lawyer from the Al-Haramain Islamic Foundation Inc. v. Bush case — a suit against the President (rather than the telecom companies) over warrantless wiretapping. And yet, a strangely inspirational one, suggesting that intelligent men of good will and a judicial system that still seems to work can work miracles sometimes: Suing George W. Bush: A bizarre and troubling tale

The story of how Al-Haramain’s lawyers negotiated the journey thus far to Judge Walker’s ruling — a team of seven lawyers that includes me — sheds light on how much is at stake for the Bush administration and the country. It is a surreal saga, involving a top-secret document accidentally released by the government, a showdown between Bush lawyers and a federal judge, the violent destruction of a laptop computer by government agents, and possibly even the top-secret shredding of a banana peel.

Call me Alice — because this is a tale directly from Government Secrecy Wonderland, the bizarre and unnerving adventures of suing President Bush for apparently violating a federal law. I’ll swear under penalty of perjury that what follows is true and correct. Otherwise, you might not even believe it.

[...] I can’t publicly reveal what’s in the Document because, well, it’s a secret. I would be committing a crime — a violation of the Espionage Act of 1917 — if I were to do so. But we assert the Document as proof of allegations we have made that in March and April of 2004 the National Security Agency conducted warrantless electronic surveillance of attorney-client communications between a representative of Al-Haramain and two of its attorneys, and that in May of 2004 the NSA gave logs of those surveilled communications to OFAC.

[...] Rebutting arguments you’ve not been allowed to see is a talent that isn’t taught in law school. I consulted Kafka’s “The Trial,” looking for helpful tips, but found none. I tried guessing at what might be in the government’s secret brief and then hazarding a response in our own. Because of Judge King’s prior order, we had to confer with the DOJ attorneys on the logistics of how to do this secret filing.

[...] We went forward without Nelson, drafting our secret appellate brief in a DOJ office, on a DOJ computer, under the watch of a DOJ security officer — that is, under the auspices and control of our adversary in the legal case. We could print out drafts but couldn’t take them from the room; instead, we were to leave the drafts on the table to be shredded by Hogarty later. When the brief was done, we were to print out five copies: one for each of the three judges on the panel that would decide the appeal, one for the DOJ attorneys and one to be put in a special safe under Hogarty’s supervision. She would personally give the judges their copies, which nobody else — not the court clerks, not the judges’ staff attorneys — would be permitted to see. We would not be allowed to keep a copy of what we had written; the brief in Hogarty’s safe was “our” copy.

Hogarty explained that anything we wrote down that contained classified information, then or later, would instantly become “derivatively classified” and thus unlawful for us to possess. I wondered whether this meant that the portion of my brain that remembers the Document is also “derivatively classified,” making its presence in my skull unlawful.

Goldberg and I spent about three hours writing our response to the secret government brief we had not been allowed to see. [...]

[...] It’s hardly a secret that the Al-Haramain plaintiffs were spied upon — it’s been reported in Salon, the New York Times, the Washington Post, the Los Angeles Times and the New Yorker magazine, among others. The reality is that the Al-Haramain case doesn’t threaten national security; it threatens only the “unitary executive” theory and the notion that presidents can disregard an act of Congress at their pleasure. Yet we have had to litigate the Al-Haramain case in the shadow of secrecy, where the government wants the case to die quietly — without a court ruling on whether the president of the United States has broken the law.

We, the members of the Al-Haramain legal team — Ashlee Albies, Steven Goldberg, Bill Hancock, Zaha Hassan, Tom Nelson and I — cannot let that happen without fighting to the end.

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