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Will the only Constitutional scholar in the race take a stand on retroactive immunity for the telcos?

[Cross posted at Kos. Recommendations appreciated.]

[I'm going to leave this sticky for awhile exactly because the answer seems to be No. At least we can put this "Constitutional professor" crapola to rest, now, though. "Those that can, do; those that can't, teach," eh?]

[Via Digby, call Professor Obama's campaign at (866) 675-2008 and tell them you want to see Obama on the Senate floor doing the right thing.]

Though nothing would please me more than for Obama to show leadership by denying retroactive immunity to the telcos helping Bush with his illegal and unconstitutional warrantless surveillance program and violating FISA, I'm guessing he'll play for safety rather than play to win.*

So, I'd like to give him and his a gentle nudge in the direction of standing up and doing the right thing. First, I'll give a high level overview** of the situation with the Fourth Amendment, the Constitution as I see it, FISA, and the role of the telcos. Then I'll summarize the very real political benefits that could accrue to Obama from using the Senate floor as a bully pulpit to prevent retroactive immunity for the telcos under cover of "reforming" FISA.

For those who came in late, here's the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Now, assuming you're not a lawyer or from inside the Beltway, what would you say the plain meaning of this text would be, in the twenty-first century? Just using your common sense and a concept of basic fairness about how the United States should work, as a country, I think you'd come up with something like this:

Papers. First, you'd say that "papers and effects" would include your email and whatever you do on the web. After all, the Framers didn't have email, back in the 1790s, and the only way they had to convey information was on paper, so they wrote "paper." But it's the information that matters, not the medium that conveys it. (After all, if the medium was important, the government would be able to search cardboard boxes or stone tablets in your house without a warrant, and that's absurd.) So, email (and IM, and VOIP, and FaceBook) all are twenty-first Century paper. And I live on the Internet, and a browser part of my twenty-first century house, just like a book or a deak was part of my house, back in the 1790s with the Constitution was written.

No warrants shall issue. If the government wants to search my papers in my house, they need to go before a judge and get permission. Kings don't need to do this, but Presidents do.

Supported. And to search my papers in my house, the government has to have some evidence. They can't just waltz in because they think it's a good idea, or because it's Tuesday, or because everybody whose name begins with L goes into the big database on the 31st of February.

Particularly describing. Finally, the evidence can't be vague. The government can't say, "Joe Schmo thinks Lambert is a terrorist, so we need to search his house." They need to add language like "... search his house for the Zucchini of Chastisement," and then search for the zucchini.

The Framers and the American people in the 1790s, let us remember, had just experienced what it was like to live under an arbitrary despot, a tyrant, who did not respect the rule of law. They were not writing abstractly. They wrote to prevent the very real abuses they themselves had suffered, and to protect future generations from similar abuse. In fact, the Bill of Rights, from which the Fourth Amendment comes, was not in the Constitution as originally drafted, and was added only after pressure from the people forced them to do so, as the price for ratification.

Fast forward from the 1790s to the 1970s. In the aftermath of the meltdown of the Nixon administration, many, many abuses of the very kind the Framers warned us against were brought to light by the Church Commission; stuff the NSA and the CIA and the FBI did that was just as bad as what the Republicans have done in our own day. And in response to these abuses, the Congress of that day crafted, in a truly bipartisan way, FISA (the Foreign Intelligence Surveillance Act). FISA, among other things, established a system of secret courts to issue warrants, so that the Fourth Amendment could be observed without compromising intelligence sources and methods. FISA turned down requests for warrants in only a handful of cases. FISA had emergency provisions so surveillance could begin before the warrant was sought. And FISA was continually modified in response to technological changes.

Fast forward from the 1970s to the year 2000, and we come to the Bush administration's warrantless surveillance program, which violated FISA (and by "violate," I don't mean "break." More like "rape and pillage"). Here's a quick rundown:

1. The warrantless surveillance program began before 9/11. In fact, Bush started pushing for it right after he took office. Therefore, the Bush administration's name for it, the "Terrorist Surveillance Program," is, like "Healthy Forests" and so much other administration language, a lie.

2. According to whistleblowers, the warrantless surveillance is program is massive. For example, in AT&Ts San Francisco network hub, there's a fibre optic switch that routes all Internet traffic going through that hub off to the NSA.

3. The warrantless surveillance program used all that Internet data for a gigantic datamining operation, so huge that NSA headquarters in Fort Meade, Maryland was actually running out of electrical power.

4. Bush bypassed FISA and the Congress when establishing the program. Instead, Bush worked directly through the telcos over whose cables, and through whose switches, all Internet traffic runs. There were no courts. There were no warrants. There was no legal justification. There was only an arbitrary decision made in secret.

5. The telcos, with one exception, did what Bush asked, and allowed Bush use their networks to read our papers. Of course, they bill the government for this, and, if the government pays its bills, the surveillance business is a very profitable one for them.

6. The telco that refused, Qwest, had government contracts taken away, and their CEO was prosecuted.

7. Under FISA, the telcos have an affirmative and independent duty to obey the law. They cannot claim to be simply "following orders" and do what they are asked to do, because they are asked to do it.

8. A Federal judge concluded, in ACLU vs. NSA, that over 30 felonies were committed in the course of Bush's warrantless surveillance program. That's because FISA is to be the "exclusive means" through which such surveillance is authorized, and violating FISA is a felony. So, each time Bush putatively "reauthorized" the program, he's guilty of a felony, and those who assisted him in his crime--that is, not only other administration officials, but the telcos--are guilty of felonies too.

9. When the Democrats took control of the House and Senate in 2006, Bush "saw the light" and "decided" to obey the law, and go before FISA to seek warrants once again. How we went about doing that raises a separate set of issues, but it's clear that the program, before that, was operating outside any legal framework whatever. So, the essential issue is this:

Should the telcos who committed felonies by assisting Bush's warrantless surveillance program pay the legal price?

Or should they be granted retroactive immunity for their lawbreaking? (Note that there are many cases against the telcos in the courts today. So, by giving retroactive immunity, Congress would not only be allowing lawbreakers to go free, they would be intervening in ongoing cases before the courts, and taking away the right of citizens to a judgement, which is virtually unprecedented.)

I think the telcos should pay the legal price. If we want to live under a Constitutional government, then we need to support the Constitution when people--even fictive legal persons like huge corporations--violate it. Take a look again at the Fourth Amendment, and look what they did:

Papers. My (twenty-first century, digital) papers were seized, in my (twenty-first century, digital) house.

Supported. There was no supporting evidence given at all. Remember that Bush put this program in motion before 9/11, so terrorism had nothing to do with the program.

No warrants shall issue. There was no warrant; Bush bypassed FISA entirely.

Particularly describing. Nothing was particularly described; it was a data mining operation! They sucked down everything they could, and then began rummaging to see if there was anything useful.

So, Bush's warrantless surveillance program is a gross violation of the Constitution, besides being a felonious violation of Federal law.

And when the telcos assisted Bush in committing 30 felonies, they too committed felonies. Do you know what happens to us when we commit felonies? We get prosecuted, and if we're convicted, we got to jail. Is there any possibility that we'll get retroactive immunity? No.

Does Congress, by granting retroactive immunity to giant corporations who break the law, really want to send the message that there's one law for the rich and powerful, and another law for the ordinary citizen?

Apparently, they do. Spineless Harry Reid and Jello Jay Rockefeller have cooked up legislation that does exactly that.

Ask yourself: If big corporations get retroactive immunity for breaking this law, what law are they going to break and get immunity for next? Banks on lending practices? Polluters on clean air and water? Manufacturers of medical equipment? Makers of prescription drugs? Is Congress to be transformed from the branch that legislates to the branch that legalizes? After the fact?

Last time Reid and Rockefeller tried their games, Chris Dodd stepped in and stopped them with a filibuster. Obama supported him with a statement, but didn't take the risk of actually speaking on the Senate floor (he was, after all campaigning in Iowa).

Soon, the Senate will take up FISA and the issue of retroactive immunity for the telcos again. Where will Obama stand? With gutless, accomodationist sellouts like Reid and Rockefeller? Or with Senators like Dodd, Feingold, and Wyden who stood up and did the right thing? Which bill will Obama support? The bill Reid supports, which the telcos might as well have written for Rockefeller, or the bill Leahy supports, which doesn't have retroactive immunity? And will he support the Constitution from far away, or will he take the body and support it from the Senate floor?

I believe that Obama should stand with Dodd and Fiengold and filibuster FISA to deny retroactive immunity to the telcos. I believe it's not only the right thing to do, but the smart thing to do. Here's why:

1. Obama can show his unique oratorical skills in the bully pulpit of the Senate floor, on an issue of real consequence.

2. Obama can weave his unity theme into a defense of the Constitution. Surely there, in the Constitution itself, is where our most fundamental true union as a country is to be found? (And not in matters like religion, gender, or race.)

3. Obama can use his unique skills as a Constitutional scholar and treat the filibuster as a teachable moment for the American people. Surely, when the Constitution is under daily assault from the Bush administration, and retroactive immunity for the telcos is an insult to the body politic, the "fierce urgency of now" demands that the Constitution be defended "now"?

4. Obama can show that he really does have fundamental principles that transcend compromise, and bargaining, and brokering. Surely the rule of law, and the sanctity of the Fourth Amendment, is one such transcending issue?

5. Obama, by standing up to the telcos, can take the corporate talking point away from Edwards.

6. Obama, by standing up to the telcos, takes the "experience" issue away from Hillary.

7. Finally, I'm dying to post the YouTubes, because I think they'd be spectacular.

In short, I think a FISA filibuster offers Obama an game-channging opportunity in the 2008 election: An opportunity that only he, by virtue of his oratorical prowess and Constitutional scholarship, can seize.

I hope he seizes the chance.

Sadly, I don't believe he will.

* OFB PROPHLACTIC Yes, I am paid by the Hillary campaign. Yes, I hope to get a job in Hillary's administration. Yes, I am a shill. Yes, I am a hack. Yes, I am a liar. Yes, I am a racist. Yes, I am a purist. Yes, I am a troll. Yes, I am ignorant. Yes, I hate Obama. Yes, I ignore all facts that don't square with my [lying|racist|purist|shilling|hackish|trollish] preconceptions of Obama. Yes, my reading comprehension is poor. Yes, I have a hidden agenda: I hope that the Democrats lose, and to that end I support [not Obama]. Yes, I could be older than you. Yes, I think all young people are stupid. Did I mention I'm a shill and a hack? Good. Anything else?

Those of you who have gotten this far, perhaps you can make substantive responses? I'll vote for your guy in the general, but he hasn't given me a reason to do that in the primaries. I'm trying to help him.

* NOTE This ground has been very well worked over by now, and so I'm not offering a lot of linky goodness. See Glenn and our own work at Corrente.

UPDATE Via Corrinne in comments, Obama may have "scheduling problems." Stoller:

During the conversation, I brought up the FISA legislation and swing liberals with Goolsbee, and someone else mentioned that Obama is going to be in DC on Monday afternoon for a fundraiser. The arguments I've gotten from the Obama camp on FISA are that he has scheduling problems with coming to DC, so we'll see, if it's accurate he'll be in town, whether he can make time to help Dodd protect the Constitution.

Ah well. At least we have a statement! And, later, a magical Unity Pony. I think I'm going to name my pony "The Hope of Audacity."

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Anna Granfors's picture
Submitted by Anna Granfors on

...needs an edit, I think...otherwise, beautiful.

Submitted by [Please enter a... (not verified) on

Thank you for putting so much vital information in one place.

Can I turn up the heat a little bit by expanding the case against?

Obama and the rest of the Democrats need to ask themselves right now: Why does this immunity question need to be settled now? If this administration has the power to do whatever it wants, why is is pressing to make the Democrats complicit in the destruction of the Constitution and the rule of law? Could it be that the Republican plan for Election 2008 has some components (e.g., telcom assistance) that require the ability to manipulate communications?

One would think that self-interest, if no higher concern, would prompt the Democrats to resist.

Submitted by [Please enter a... (not verified) on

I don't get the fear they have of standing up to Bush. BO and Hillary are running in a primary for the Democratic nomination!!!! Bashing Bush is just a great way to gain support in the Primary.

Up holding the rule of law is/or should be a priority for anyone that wants to be President of the U.S.A. (and for any citizen of this country).

Maybe they will surprise me. God I hope so.

chicago dyke's picture
Submitted by chicago dyke on

i have so much respect for you, lambert. you have such fortitude and patience. i'm sorry it's so lonely over here, but you know i'll always be your friend.

/precious moments statuette with brown and pink bespeckled cuties sharing a lunch pail and a fishing pole, heads together/

chimneyswift's picture
Submitted by chimneyswift on

The thing is, I take Obama at his word, he really would try to be bipartisan. That's spooky. Did you read Krugman?? I think he really likes Edwards.

And I agree, it would be a thing to see if Obama took your advice. But it's hard to talk about unity, hope and accountability all at the same time.

He was fascinated by the way they gambled. Now he wasn't chairman of the board of directors, no, he was just a player.

Submitted by [Please enter a... (not verified) on

You know, the British, though they do deserve a fair bit of criticism, often get a bum rap whenever people start talking about the Constitution. Yeah, it's great, and all that, but....

Kings don’t need to do this, but Presidents do.

Well, maybe some kings don't, but George III sure did, and the Kings and Queens of England have pretty much had to since 1215 (well, more or less; Magna Carta applied to the barons and landed classes, but I'm sure there were a few people with dark skins down in Alabama in 1860 who were pretty sure the Constitution — assuming they'd heard about it — didn't apply to them, either).

The Framers and the American people in the 1790s, let us remember, had just experienced what it was like to live under an arbitrary despot, a tyrant, who did not respect the rule of law.

By the 1790s, Parliament held all the real power in Great Britain. George I only ascended to the throne by Act of Parliament, and the last refusal of Royal Assent was in 1708. So any beef the colonists had was with Parliament, not necessarily the King. William Pitt pointed out that Parliament wasn't being terribly bright about the whole thing, but nobody listened. It's not clear that Congress does much better on a regular basis.

Anyway, George wasn't really the ogre he was made out to be by a group of disgruntled tax dodgers, smugglers, and land speculators who decided to overthrow their duly constituted government. All told, I think I'd prefer him to the George currently occupying the White House.

Submitted by lambert on

... but setting aside the Constitution to move beyond faction? WTF?

Yes, I read Krugman. Narratives matter.

[x] Any (D) in the general. [ ] Any mullah-sucking billionaire-teabagging torture-loving pus-encrusted spawn of Cthulhu, bless his (R) heart.

Submitted by lambert on

... but think of this as an Op-Ed piece, OK?

[x] Any (D) in the general. [ ] Any mullah-sucking billionaire-teabagging torture-loving pus-encrusted spawn of Cthulhu, bless his (R) heart.

chicago dyke's picture
Submitted by chicago dyke on

sorry, i'm getting snarky in this late afternoon. king GIII would likely be worse than our W, just because he didn't see women and black people as human and took it as his god-given mission to enforce xtianity, his kind, on all under his power. blah blah, i'm not calling him a tyrant on the scale of Khan, only that people of his "station" from that age would be...unbearable today as monarchs.

W comes close however, and that's saying something.

Submitted by candy on

according to Kos

The Hill

Thankfully, the two leading Democratic presidential candidates are siding with Dodd.

Asked for comment, the campaign of Sen. Barack Obama (Ill.) provided a statement from the senator: “I strongly oppose retroactive immunity in the FISA bill. No one should get a free pass to violate the basic civil liberties of the American people — not the president of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program [… T]hat is why I am proud to stand with Sen. Dodd and a grassroots movement of Americans who are standing up for our civil liberties and the rule of law.”

Likewise, Sen. Hillary Rodham Clinton’s (N.Y.) campaign reaffirmed to me the senator’s opposition to telco amnesty, and her support for a filibuster, if necessary.

Submitted by [Please enter a... (not verified) on

but until they stop their bickering and unite to save the Constitution, statements don't mean shit. Dodd did more than issue a statement. How much do you want to bet neither Hillary nor Obama will be able to find the time to stand up for the country when it counts. They will be in South Carolina when the debate takes place. THey need to be fired from the jobs they have, not promoted.

Sarah's picture
Submitted by Sarah on

No, he won't, lambert. It's not in his best interest as a rising star in the Senate and it sure would not be in his best interest as a corporatist President. So, no.

We can admit that we're killers ... but we're not going to kill today. That's all it takes! Knowing that we're not going to kill today! ~ Captain James T. Kirk, Stardate 3193.0

Submitted by [Please enter a... (not verified) on

A statement saying how proud he is to "stand" with Dodd is the most anyone will get out of Obama.

Matt Stoller

During the conversation, I brought up the FISA legislation and swing liberals with [Austan] Goolsbee, and someone else mentioned that Obama is going to be in DC on Monday afternoon for a fundraiser. The arguments I've gotten from the Obama camp on FISA are that he has scheduling problems with coming to DC, so we'll see, if it's accurate he'll be in town, whether he can make time to help Dodd protect the Constitution.

Obama's schedule might not have room for the US Constitution. Imagine that.

Submitted by lambert on

I'll just go hang myself, then, shall I?

What's wrong with these people?

[x] Any (D) in the general. [ ] Any mullah-sucking billionaire-teabagging torture-loving pus-encrusted spawn of Cthulhu, bless his (R) heart.

chicago dyke's picture
Submitted by chicago dyke on

During the conversation, I brought up the FISA legislation and swing liberals with [Austan] Goolsbee, and someone else mentioned that Obama is going to be in DC on Monday afternoon for a fundraiser.

of course i'm being snarky, matt is bright and right and AOK, but this tone made me want to joke:

and did you counter with a bigger check, matt? if you're there, and you want to have a say in "Teh Schedule," that's really the only way.

matt knows this, i'm just being silly.

Submitted by [Please enter a... (not verified) on

what Overcompensating was getting at:

"1rony m3ans n3v3r hav3ing 2 4dm17 u r wrong!"

hee hee. maybe it's just me, or maybe this wine came from a finer vinage of boxes. :)

Submitted by lambert on

... rates that guy as 79,000 and us at 188,000. Does that mean we can get an ad from American Apparel -- hot chicks! -- half that size?

[x] Any (D) in the general. [ ] Any mullah-sucking billionaire-teabagging torture-loving pus-encrusted spawn of Cthulhu, bless his (R) heart.

Submitted by [Please enter a... (not verified) on

Via FDL, and I am vexed that this did not go out on the Edwards campaign email list(s):

In Washington today, telecom lobbyists have launched a full-court press to win retroactive immunity for their illegal eavesdropping on American citizens. Granting retroactive immunity will let corporate law-breakers off the hook and hamstring efforts to learn the truth about Bush's illegal spying program.

"It's time for Senate Democrats to show a little backbone and stand up to George W. Bush and the corporate lobbyists. They should do everything in their power -- including joining Senator Dodd's efforts to filibuster this legislation -- to stop retroactive immunity. The Constitution should not be for sale at any price."

god DAMN but if you could get an orator of Obama's skill to give a message of Edwards' straighforward simplicity.

Where are you, Barak? Where are you, Hillary? YOU have the seats in the Senate and I want your fucking asses IN those seats tomorrow like your constitutents, and the American people in general, are giving you regular paychecks and health insurance and shit to do.

NOT. FOR. SALE. AT. ANY. PRICE.

Say it with John or stfu and go home.

Submitted by [Please enter a... (not verified) on

Obama and Clinton are worthless. They opposed filibustering Bush's judicial thugs and fell over themselves to vote for the unPATRIOTic Act. They stand for nothing.

Oh, and Harry Reid is human excrement:
http://tinyurl.com/ysblmw

Submitted by [Please enter a... (not verified) on

I'm really interested to see if Edwards will (or can?) do anything other than issue that statement, which was pretty cool in and of itself.

Also interested to see whether or not TPM and KOS will pick Edward's statement up and run with it.

Primaries are where people really have opportunities to show their character, no?

Submitted by [Please enter a... (not verified) on

"Primaries are where people really have opportunities to show their character, no?"

I am pretty sure I never gave a "Rat own, bro!" to an Anonymous Coward before but this time surely deserves it.

For what it's worth AC, TPM at least will pick it up if enough people write in and mention it. Kos is another matter, people are at such a level of hysteria there (a great deal of which I suspect is GOP agitprop--they've had plenty of time to dig in deep given the Scoop format) that it's hard to be heard above the clamor.

But clamor is good if it helps propel this statement up into the clean wide free air. I'm pushing it hard; the fact that it started out at FDL doesn't hurt either. Lotsa people read FDL.

You get a chance to forward it to Rachel Maddow, by all means go for it. She was Primo No. 1 First Class in bringing down Tweety Matthew's ass, she can bring a clarion call to this issue too.

In fact she brought it up on Olberman tonight, but i don't think the Edwards statement was out yet based on the FDL timestamp. Betcha she brings it up tomorrow though....because she knows the importance of repetition.

Not everybody is listening at any given time. You have to say important things over and over again, both to get it across to the most people and to reemphasize it so folks understand it's important.

Submitted by [Please enter a... (not verified) on

Lambert: Oh, sure, poetic licence, and all that. Not to worry.

chicago dyke: Not sure what George had to do with slavery, as it had been a going concern since the 1550s. But the Colonists — both the southerners and the northerners who profited from the trade — didn't seem to have any problem with it, and managed to keep it going for another 150 years after the Revolution and 50 years after the slave trade was banned by those tyrants in England (okay, it took them another 30 years to emancipate the slaves themselves, but, hey, it was a start).

Point being, as is so often the case, the US is not (and has not been) as wonderful — and others not as evil — as it likes to believe.

Submitted by [Please enter a... (not verified) on

what's the deal with that stuff--it's on tv right now.

Obama won't lift a finger to help us stop them spying on us or to punish them. Neither will Clinton.

intranets's picture
Submitted by intranets on

“the constitution should not be for sale at any price.”

Puleeaze. Just ask Pelosi how much it is worth! Whatever the price of "off the table" is, that is what she sold out this country for. Checks & Balances, gone. Co-equal branches, gone.

If you think the Constitution is not for sale, it is only because it was already bought, and the new owners took down the placard. It is Romney's buddies Blackwater that now owns it? Or was that Bill of Rights. Or Magna something.