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I have been following this issue closely since the NY Times broke the story in 2005. I was outraged by our Government spying on its own citizens. I find it reprehensible! After all, weren't the alleged hijackers all foreigners? What is to gain from spying on innocent Americans? Further, according to numerous sources, our Government knew plenty about the hijackers and their plans. We already had intelligence, but due to incompetence or distraction or complicity, the Bush Administration failed to stop the attacks. We didn't need to revise FISA. FISA is just fine -- maybe we could insert a provision for electronic communications or other contemporary technology, but the part about needing a Warrant -- well, that's in the Constitution.
Anyway, coming back to my point and your post: the House leadership (if you can call it that) -- principally Nancy Pelosi claimed victory in the recent House bill because now FISA would be the exclusive law under which our Government must conduct surveillance. This apparent legal clause in the Bill was supposed to be some huge accomplishment. However, as most of us know, FISA HAS ALWAYS BEEN THE EXCLUSIVE LAW UNDER WHICH OUR GOVERNMENT IS SUPPOSED TO CONDUCT SURVEILLANCE. The Bush Administration simply ignored the law. They circumvented the 4th Amendment. They used extra-constitutional powers endowed by White House/DOJ "lackey" lawyers who concocted bogus legal arguments. So, it is plain to see that Pelosi's "victory provision" amounts to absolutely nothing. Nada. Nicht. This is troubling that she and other top Dems would publicly issue these types of statement. I am disturbing/astounded at the complete lack of legal analysis and critical thinking.
More troubling still is the immunity provision. In March 2008 our Senate passed a bill revising FISA that gave the telecoms immunity. Yes, the Democratic controlled legislative body. The House, on the other hand, voted down the proposal. Now, 3 months later there is a total role reversal. The Senate, behind the prodding of Feingold is trying to remove the immunity provision.
About this "immunity provision" -- don't let anyone tell you different, it is complete civil immunity. All the telecoms must do is provide a Certification Document from the DOJ saying what the Government was asking them to do was legal. Remember, this is the same DOJ that somehow legalized torture; refused and refuses to cooperate with Congressional investigations; allowed political appointees to create some kind of GOP vetting process for new hires; and has basically been a rubber stamp for the neocon-led White House. It is worth mentioning that Qwest refused to assist the Government because their lawyers saw the lack of evidence and specificity in the Government's surveillance program. What is also worth mentioning: THE SPYING STARTED BEFORE 9/11.
SO, the House trumpets their achievement by saying: this still leaves the telecoms open to criminal prosecution. Well... under what charge? Who is going to prosecute them? In what Court? The problem with this rationale is: NO ONE KNOWS ANYTHING ABOUT THE GOVERNMENT'S DOMESTIC SPYING OPERATIONS! How can anyone sue? How can anyone prosecute? We also know from the Public Record that the CIA, FBI, NSA, DOD and other Government agencies participated in the domestic spy program. I mean, how far does the rabbit hole go???
In closing, I share your outrage and appreciate Greenwald's work on this issue. As a Constitutional Lawyer, Mr. Greenwald brings much needed legal analysis to the table. People like us who are writing about this issue, sending emails and making calls -- we are also doing our part. We've raised such a ruckus, the Senate called off their vote on the bill, AND OBAMA HAD TO WRITE AN OP-ED ON HUFF POST AND HIS WEBSITE EXPLAINING HIS REVERSAL OF POSITION. Speaking of Obama, it does not bode well for the Democratic Party if he continue to do 180's on key issues like this. It's bad enough that Democrats have done nothing they promised after taking control in 2006, now we are supposed to believe Obama is about changing the way Washington works, AND HE CANNOT EVEN VOTE AGAINST TELECOM IMMUNITY?! Obama is all about no lobbyists and down with Bush and this and that... yet it seems all of his moves since clinching the nomination have been through the lens of political expediency. No bueno.
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