These Senators were poised to vote on the FISA bill last week but, as we suspected, most of them have not formed an opinion on it. Many had not even read it.  The bad news is that they were going to vote on a bill they had not even reviewed. The good news is that there are minds that can still be changed and time in which to do it. Here's where you come in.  Last week's under-the-radar desperation advocacy--courtesy of Kossacks, "Strange Bedfellows," and an assortment of other bloggers, libertarians and liberals--put the horrendous FISA bill on hold until after the July 4th recess. That was a huge victory, but it will be an empty one if last week's desperation advocacy doesn't become a steady and loud drumbeat against this bill.

[Cross-posted at The Left Coaster.]

In a political summer of 2003 with "nothing to do" Howard Dean started a candidacy out of Vermont with a visionary internet campaign manager, Joe Trippi.  I had an easy cube job in the Valley that summer and happily joined in, thrilled with a Democrat who at last would fight, feeling more like a demi-god every day as the code I toiled in transformed a political world, eventually to garner the endorsement of a real political god, Al Gore.

That marked a turning point for all the political forces possible to whap this upstart back, and well all know how that worked out.  A pep talk after defeat in Iowa for earnest Deaniacs who had not a clue how to caucus was not the greatest of ideas, no, but the flaying of a candidate in the stocks with the Dean Scream is still a painful memory for me.

Very interesting: These Senators were poised to vote on the FISA bill last week, but most of them have not formed an opinion on it! The bad news is that they were going to vote on a bill they had not even read.  The good news is that there are minds that can still be changed.  Last week's under-the-radar desperation advocacy--courtesy of "Strange Bedfellows," Daily Kos, and an assortment of other leftist bloggers, libertarians and liberals--put the dasterdly FISA bill on hold until after the July 4th recess.  But more than ever, last week's desperation advocacy needs to become a steady and loud drumbeat against this bill.  I urge voter revulsion as part of my "Protect the Fourth on the Fourth" mission. This is not just a rant.  This is a call to action.  Tell your Senators that you won't be contributing to or voting for anyone who's willing to sell out our constitutional rights, and ask how they'll vote on the bill and its amendments (described very briefly below).  LET ME KNOW WHAT THEY SAY AND I'LL POST IT!

The common wisdom in the media is that Sen. Obama is showing strength by "standing up to the left" by signing on to the FISA compromise. Like so much of what passes for intelligence on the idiot box this is a bunch of hooey. The charitable reading is that it puts a fig leaf over a very obscene part of Obama’s campaign. If it weren’t so logically flawed and the stakes were not so high, then it would be mildly amusing. But, that presupposes it’s a political fight, like some dustup over whether to do away with Social Security, and it presupposes that this was a left-right, liberal/conservative issue. Of course, neither of those premises holds.

But, I find myself somewhat less than surprised over Obama’s position and hardly outraged. After all, we all knew he was a politician, and we’ve learned that can be an epithet as well as a laudatory label. In the event, he may be irrelevant to the discussion. It would be good to know that someone about to take the oath of office would mean the words they speak, but is that ever the case?

If I really wanted Bush's third term I'd vote for John McCain, not Barack Obama.

Balkin:

[T]he Obama campaign sent a lukewarm endorsement of the measure [FISA compromise bill]: As to the key reforms of FISA, the bill is an acceptable compromise, not perfect but the best one can do under the situation. As to the retroactive immunity for telecom companies, Obama says he will work to change that in the Senate.

What gives? Why did Obama stay silent for so long, and why did he finally offer such a muted response to the bill?

The answer is simple:

Gee, don't the 'conservatives' pushing telecom immunity in the FISA revision read the polls?  The new president, to whom they're about to hand an unchecked new power, could use that power against them.

One big problem with Obama's FISA position: He refuses to explain it.  

[update] opinion below confirmed by Glenn Greenwald.

Are you pissed about FISA?  I know I'm pissed about FISA.  However, I may have discovered something.  I could be wrong, and I would welcome corrections, especially since I'm not a lawyer.

But if I read the compromise bill correctly, there is some wiggle room that would still provide for some accountability for some of the most egregious parts of the domestic surveillance program: namely, everything that occurred before 9/11.

More below.

Not only wrong, but either your staff is mistaken about your position or you feel comfortable issuing false press releases.

A statement so blatantly false it makes me cringe:

"The FISA legislation we will consider gives our intelligence community the tools it needs and the public the civil liberty protections it deserves. In addition, it rejects calls for automatic immunity for private sector companies. While this bill isn’t perfect, the perfect should never be the enemy of the good. I applaud the Democrats and Republicans who reached this compromise and produced legislation that deserves support from both sides of the aisle."

Barack Obama is actively supporting the Blue Dog, warrantless wiretapping advocate and champion of telecom amnesty  John Barrow of Georgia in his primary fight against State Senator Regina Thomas.  At this critical juncture in the fight against amnesty Obama has not yet stepped up to the plate to support opponents of amnesty.  Furthermore his support of John Barrow (recording a 60 second ad stating "We're going to need John Barrow back in Congress to help change Washington and get our country back on track") sends the absolute wrong message.  This is a guy who ran an ad against "cutting and running" in Iraq.  He is NOT "better democrats".

So the Rockefeller/Hoyer wing of the Democratic Party is all set and ready to "compromise" with the Bush/Cheney/Rove Executive that treats its Legislative co-equals as second-class citizens on telecom amnesty.  Fortunately, it appears that Senators Reid and Durbin are opposed to this capitulation; hopefully they and their backbone-enhanced colleagues can use that spine to overcome the compromise-prone jellyfishes who believe that bipartisanship is a one-way street leading to cover-up of GOP crimes.

We should be used to this by now, but it appears the Democratic leadership is preparing to sell us down the river yet again.  Here's the link.  I know little beyond this basic story, but based on things I've seen in Greenwald it sounds like the "compromise" on immunity is no compromise at all:  the law will insruct the courts to dismiss the lawsuits if the telcos can prove the President requested them to wiretap and that he assured them it was legal.  This, of course, is exactly what happened.  What does a law mean if a President can instruct one to violate it with impunity?  The bill will also have all the other bad warrantless wiretapping crap we've come to expect.  See after jump for info on an upcoming action alert. Update Below.

They're at it again.  Sylvestre Reyes, House Intelligence Committee Chair, has signalled his willingness to accept "compromise" language offered by that paragon of civil liberties, Kit Bond, to permit Bush to go on spying on the American people without a warrant.  See below the fold for the story.

We all need to contact the Obama (and Clinton) campaigns and ask them to come out against this so-called compromise.

One of our rare wins, on one of the most important issues -- preserving the Constitution and the rule of law by stopping the Senate telecom amnesty/warrantless wiretapping FISA legislation in the House -- is about to be thrown away.  And the culprit is not Bush, or Cheney, or even Rockefeller or Hoyer -- it's Nancy Pelosi, so-called progressive lion.

More below the jump.

The fight to ensure that our Democratic Congress continues to hold its ground and refuses to take Jay Rockefeller's unwise advice to roll over for the Bush Administration on telecom amnesty has been of central importance for many of us in the progressive community.  Kossacks mcjoan and Kagro X have both done an outstanding job keeping this and the intimately related FISA issues front and center in the netroots, and groups like the Courage Campaign have done well in making sure that progressive activists continue to lobby decision-makers to do the right thing.

It wasn't in front of the Judiciary Committee, but it might be a portent of things to come, given Leahy's interest in talking to Mukasey. Yesterday he appeared at a budget hearing in the Subcommittee on Commerce, Justice, Science, and Related Agencies, on which Leahy and Feinstein sit. They each had more than budgets in mind.

Leahy asked Mukasey about his false assertion in a recent speech that the U.S. had received intelligence about calls from a "safe house in Afghanistan" just prior to 9/11, but weren't able to act upon it because of FISA laws:

On his third question, Leahy asked Mukasey to clarify a recent comment he made in San Francisco where he implied that the failure to listen in on a phone call from Afghanistan to the United States prior to the Sept. 11, 2001 attacks had cost 3,000 lives.

"Nobody else seems to know about this. Can you tell me what the circumstances were and why?" Leahy said.

"The phone call I referenced relates to an incoming call that is referred to in a letter in February of this year to House Intelligence Committee Chairman [Silvestre] Reyes [(D-Texas)] from Director of National Intelligence Mike McConnell and I," Mukasey said.

"One thing I got wrong. It didn’t come from Afghanistan. I got the country wrong," Mukasey continued without specifying the country where the call originated.

Mukasey, who used the phone call as an example to highlight the intelligence shortcomings before 9/11, did not explain why he included the comment to argue for expanded surveillance powers in a question-and-answer session after his speech on March 27.

"No FISA [Foreign Intelligence Surveillance Act] application should have been necessary to monitor a foreign target in a foreign country," Leahy reminded Mukasey. "We didn’t need it then. And we didn’t need it today."

So what was Mukasey talking about and how did it have anything to do with FISA? We still don't know. In the letter he references, there is this:

We have provided Congress with examples in which difficulties with collections under the Executive Order resulted in the Intelligence Community missing crucial information. For instance, one of the September 11th hijackers communicated with a known overseas terrorist facility while he was living in the United States. Because that collection was conducted under Executive Order 12333, the Intelligence Community could not identify the domestic end of the communication prior to September 11, 2001, when it could have stopped that attack. The failure to collect such communications was one of the central criticisms of the Congressional Joint Inquiry that looked into intelligence failures associated with the attacks of September 11.

This explanation has come up before, when the DoJ responded to Glenn Greenwald's inquiry, and it failed under the scrutiny of both Glenn and emptywheel. What that Joint Inquiry concluded was that, while there may have been problems with intelligence agency coordination, the problem was not that FISA--or any other law--prevented intelligence activities, but that NSA chose not to follow up on this lead. So Mukasey continues to evade the real points--what has this to do with FISA, and why didn't the 9/11 Commission have this information.

Feinstein had little more luck trying to pry an answer out of him as to whether the yet-to-be released Yoo memo on the Fourth Amendment has been withdrawn:

..."I can't speak to the October, 2001 memo," Mukasey said when she asked whether it had been withdrawn. He said that Yoo's later March, 2003 memo -- which broadly authorized the use of torture by military interrogators on unlawful combatants -- had been withdrawn, but refused to discuss that October, 2001 memo....

[Extended back and forth in which Mukasey refused to directly answer the question]

...Finally, Mukasey responded, "The Fourth Amendment applies across the board whether we're in wartime or peacetime. It applies across the board."

When Feinstein pronounced herself satisfied, Mukasey said, "with due respect, I don't think there's anything really new about that answer." He went on to imply that Yoo's discussion of the applicability of the Fourth Amendment had not been a crucial aspect of that memo. "The discussion of which that was a part... means the inaptness... the suggested inapplicability of the Fourth Amendment as an alternative basis for finding that searches discussed there would be reasonable."

"But Mr. Yoo's contention was that the Fourth Amendment did not apply and that the President was free to order domestic military operations," Feinstein replied.

"Without regard to the Fourth Amendment?"

"Yes."

"My understanding is that is not operative."

Because that memo has not been declassified, we don't know what was the "crucial aspect of that memo." Nor is it at all clear that the memo, like the infamous torture memo, has been withdrawn. Or whether this memo provided the legal rationale for warrantless wiretapping. What is clear is that, while he might be more adept at avoiding answering questions to Senators than his predecessor, he's no more inclined to tell the truth. But that's no reason to not haul his ass up to the Hill on at least a weekly basis to try.

There's no time like the present. Senator Leahy should schedule a hearing for Mr. Mukasey before the Judiciary Committee dedicated to just these questions.

In the ongoing saga of the tearful story told by Mike Mukasey in trying somehow tie telcom amnesty to 9/11, Glenn gets confirmation that Mukasey is full of it

I just received the following statement from the Vice Chairman of the 9/11 Commission, Rep. Lee Hamilton, in response to my inquiries last week (and numerous follow-up inquiries from readers here) about Attorney General Michael Mukasey's claims about the 9/11 attack and, specifically, about Mukasey's story that there was a pre-9/11 telephone call from an "Afghan safe house" into the U.S. that the Bush administration failed to intercept or investigate:

I am unfamiliar with the telephone call that Attorney General Mukasey cited in his appearance in San Francisco on March 27. The 9/11 Commission did not receive any information pertaining to its occurrence.

That's the statement in its entirety, and it's hard to imagine how it could be any clearer.... In light of Hamilton's amazing comment, could journalists possibly now report on this story? One of two things is true about Mukasey's extraordinary claim about how and why the 9/11 attacks occurred. Either:

(1) The Bush administration concealed this obviously vital episode from the 9/11 Commission and from everyone else, until Mukasey tearfully trotted it out last week; or,

(2) Mukasey, the nation's highest law enforcement officer, made this story up in order to scare and manipulate Americans into believing that FISA and other surveillance safeguards caused the 9/11 attacks and therefore the Government should be given more unchecked spying powers.

I vote for #2, but wouldn't it seem like this would be something some enterprising investigative reporter would want to find out?

What's more, it seem like something Committee Chairs Reyes, Rockefeller, and Leahy would be interested in joining with Conyers to ask about. The Congress, and the country, needs to hear what Mukasey has to say about this.

Yesterday, Harry Reid gave Republicans another chance to show their true colors in this fight, do they mean it when they say they want to protect America, or is it about protecting AT&T?

"On several occasions, I have proposed a 30-day retroactive extension of the law that expired in February, the so-called Protect America Act.  My purpose is to make sure there is no gap in our intelligence gathering capacity, and to set a deadline for final action on a longer-term bill.  But the President has threatened to veto such a bill and Republicans have blocked it.

"I will now again propose such an extension.  Republicans may again object.  But if they do, they bear responsibility for the fact that this law is not in place.  Eventually, the President and Republican leaders must come to the negotiating table, for the good of the country."

Three guesses what the Republicans did.

Senate Republicans blocked a Democratic attempt to revive a controversial wiretapping law for 30 days on Monday night, leading to a mini-squabble on the chamber floor over the Bush administration’s program.

Majority Leader Harry Reid (D-Nev.) had asked for unanimous consent for the month-long extension to allow more time for House-Senate negotiations....

"It’s time for us to get serious and protect the companies that protect us," McConnell said.

This was the law, the Protect America Act, that Republicans told us was necessary for preventing the end of the world. Until Democrats said "bullpuckey" and let it expire, after which the world did not end. Now that bill isn't enough, because the gaps in intelligence they insisted would cripple us if the law expired are not nearly as important as letting AT&T off the hook for illegally spying on us.

The Republicans are still playing politics with this bill, still using the threat of the apocalypse to scare their dwindling base into organized calling efforts against people like Dem Freshman Kirsten Gillibrand, who stood up to the pressure and voted for the sane, amnesty-free, House FISA bill. I wonder if all those callers know that they've been duped into trying to protect their phone company?