West Virginia Blue
The Best Blogging Community in West Virginia Democratic politics, progressive policies, the good life and free living in Wild, Wonderful West Virginia.
Whenever someone tells me how Sen. Jay Rockefeller must be right about telecom immunity because as chairman of the Senate Intelligence Committee he must know what he's doing, I cannot help but scoff.
Afterall, this is a many who was wrong about the Iraq war, wrong with his vote on the Military Commissions Act, wrong about Director of National Intelligence Mike McConnell. So why would some West Virginians still have blind faith in Senator Rockefeller on telecom immunity?
The answer, I think, is because he is on the good side on many other issues and he does have a personal charm.
But the truth is, blind faith in political leaders is what got the country into the mess we're currently in. We're not Republicans, who are knee-jerk supporters of authoritarians. We're Democrats. We're the reality-based community.
I've said before I liked Senator Rockefeller when I've met him. But I'm not going to let that lead me to ignore where he's wrong.
Let's look at his history. Put aside his Iraq war vote because he's apologized for his error there.
Instead, begin with his vote for the Military Commissions Act - aka the Torture Act of 2006. It was a bill so horrendous it not only endorsed torture methods used in the past, it did away with habeas corpus protections enshrined in the U.S. Constitution.
Sen. Leahy gave a superb closing speech, lamenting that the days when Congress imposes a meaningful check on the Presidency "are long past," and pointing out that the way our Government is operating contravenes all of the political values he was taught growing up. He was properly and genuinely angry as he described the simply astonishing fact that President Bush now has the power to abduct people from around the world and consign them to life in prison and torture them with no opportunity of any kind to prove one's innocence.
But Rockefeller voted to give Bush that very power.
Just as he was wrong on the Torture Act of 2006, he is wrong for telecom immunity. In both cases, those who committed torture and the telecom companies that allowed for warrantless wiretapping received legal "justification" from the partisan Department of Justice.
That's not just my view. That view is also held by Constitutional lawyer Glenn Greenwald in his post on the horrific John Yoo torture memo:
This incident provides yet more proof of how rancid and corrupt is the premise that as long as political appointees at the DOJ approve of certain conduct, then that conduct must be shielded from criminal prosecution. That's the premise that is being applied over and over to remove government lawbreaking from the reach of the law.
That's the central argument behind both telecom amnesty and protecting Bush officials from their surveillance felonies (it's unfair to hold them accountable for their illegal spying behavior because the DOJ said they could do it). It's the same argument that CIA Director Gen. Michael Hayden just made on Meet the Press as to why CIA interrogators should be immunized from the consequences of their illegal conduct ("when I go and tell him to do something in the shadows and point out to him it is perfectly lawful, that the Department of Justice has reviewed it . . . I need him to have confidence in that DOJ opinion").
The DOJ is not the law. They are not above the law and they do not make the law. They are merely charged with enforcing it. The fact that they assert that blatantly illegal conduct is legal does not make it so. DOJ officials, like anyone else, can violate the law and have done so not infrequently. High DOJ officials -- including Attorneys General -- have been convicted of crimes in the past and have gone to prison.
Embracing this twisted notion that the DOJ has the authority to immunize any conduct by high government officials or private actors from the reach of the law is a recipe for inevitable lawlessness. It enables the President to break the law, or authorize lawbreaking, simply by having his political appointees at DOJ -- including ideologues like John Yoo -- declare that he can do it. As these incidents ought to demonstrate rather vividly, the mere fact that Bush officials at the DOJ declare something to be legal cannot provide license to break the law with impunity.
Telecom companies had high-priced corporate lawyers to tell them that the Department of Justice was wrong. Qwest executives declined to participate. The others, as we know, participated because it was profitable. They did not do it for patriotic reasons as they even stopped the warrantless wiretaps when the federal government was late with the bill.
How can one justify Rockefeller's judgment when he did this?
When he was defending the amendment he introduced to compel the CIA to disclose to the Senate and House Intelligence Committees information about their interrogation activities, he complained that the White House has concealed all information about the program and that the Intelligence Committee members (including him) know nothing about this interrogation program. His amendment was defeated with all Republicans (except Chafee) voting against it. He then proceeded to vote for the underlying bill anyway.
Which leads to DNI Mike McConnell. McConnell has been lobbying Congress for immunity for the telecom companies just as other Bush administration officials lobbied for legal protections of themselves provided by the Torture Act.
...today the Senate has confirmed the nomination of VADM Mike McConnell to be the next Director of National Intelligence. It is hard for me to imagine a better choice than Admiral McConnell.
snip
A quick review of his resume will show even the casual observer that Admiral McConnell is incredibly well qualified for this critical position. He retired from the Navy as Vice Admiral after 29 years of service. Most of his service during this distinguished career was as an intelligence officer.
snip
Upon retiring from the Navy, Admiral McConnell went to work for Booz Allen Hamilton where he has been a senior vice president for intelligence and national security. He also is currently chairman and chief executive officer of the Intelligence and National Security Alliance, an industry group that works with the Government looking for ways to solve some of our complex intelligence problems. He has the requisite Government experience supplemented by a decade in the private sector.
What Rockefeller did not mention was McConnell's work for the telecom industry.
But not only is McConnell's role arguing for telecom immunity tainted by his ties to the telecom industry, he's also shown a remarkable record of baldly lying to the American people and to Congress.
McConnell, whose nomination early last year was applauded by lawmakers from both parties, has twice provided false information to Congress -- and in both cases, they were statements that served to distort the surveillance debate. In the heat of the surveillance bill debate, McConnell claimed that three German terrorism suspects had been arrested due to intercepts made possible by the administration's Protect America Act; it turned out the intercepts were obtained under the old FISA bill. Only a couple weeks later, McConnell told Congress that rulings by the FISA Court had prevented the NSA from surveilling Iraqi insurgents who had kidnapped U.S. soldiers for 12 hours. That turned out to be, at best, a misleading explanation for the delay.
When Rockefeller has gotten so many things wrong in regards to his work on the Senate Intelligence committee, don't expect me to trust him on those issues. I'm sure many West Virginia Democrats would prefer I did not spend so much time criticizing a Democratic senator, who on many issues has been good for the state.
But I'm not going to quit. Instead of blindly following, I'd rather try to guide him to the right path. I have faith he can learn from his past mistakes.
"Republicans have dedicated significant time and resources in engaging regional and local media, editorial boards, and talk radio over the break," said Kevin Smith, a spokesman for House Minority Leader John A. Boehner , R-Ohio. "We're going to hold every Democrat accountable for their irresponsible actions on this bill, and we will ramp up the pressure until they do the right thing and pass the bipartisan Senate bill. In the end, we believe they will cave."
Don't you guys ever read the sports pages?
In the end, we believe they will cave.
Special note to Senators Baucus, Bayh, Carper, Casey, Conrad, Inouye, Johnson, Kohl, Landrieu, Lincoln, McCaskill, Mikulski, Ben Nelson, Bill Nelson, Pryor, Rockefeller, Salazar, Webb and Whitehouse, and Reps. Boren, Carney, Cooper, Holden, Lampson, and Shuler (c'mon, Shuler, tell 'em what this locker room stuff is all about):
Please take note of the language. It's no accident.
If you cross the line and vote with the Republicans on FISA, you won't be hailed as heroes. You won't be received as reasonable moderates. You won't be spared the attack ads or the abuse.
You will have "caved." (emphasis mine. Carnacki)
That's how they see you. Your votes won't be held up as examples of bipartisan compromise. They will be held up as the scalps of weak-willed losers who "caved."
Rockefeller should stand up to them and change his position.
Paging Senator Rockefeller. Senator Jay Rockefeller to the courtesy phone, please. The New York Times gets it on telecom immunity:
What Mr. Bush wants is to be able to listen to your international telephone calls and read your international e-mail whenever he wants, without a court being able to prevent it or judge the legality of his actions.
Mr. Bush said the House bill would "cause us to lose vital intelligence on terrorist threats." But he has never offered credible evidence of any operation that was hobbled because officials had to request a warrant. The law already allows the government to eavesdrop first and then seek a warrant. As for that technology gap, Congress fixed it last year. The authority has expired, but wiretapping operations started under it can continue.
Finally, Mr. Bush said it was vital to national security to give amnesty to any company that turned over data on Americans without a court order. The purpose of this amnesty is not to protect national secrets - that could be done during a trial - but to make sure that the full damage to Americans' civil liberties is never revealed. Mr. Bush also objects to a provision that would create a committee to examine his warrantless spying program.
Mr. Bush wanted the House to approve the Senate's version of the bill, which includes Mr. Bush's amnesty and does not do nearly as good a job of preserving Americans' rights. We were glad the House ignored his bluster. If the Senate cannot summon the courage and good sense to follow suit, there is no rush to pass a law.
The president will continue to claim the country is in grave danger over this issue, but it is not. The real danger is for Mr. Bush. A good law - like the House bill - would allow Americans to finally see the breathtaking extent of his lawless behavior.
The House of Representatives passed a pretty good version of a FISA amendments bill that protects the country AND the Constitution.
My online rival Kagro X explains how the Democrats avoided Republican stall tactics.
So the House gets to strip immunity (and the other junk) back out of H.R. 3773, and the Republicans can't just undo that work with a motion designed to peel off Blue Dogs. If the amendment to the Senate amendment passes, it pops right back out of the House and goes back to the Senate on the express bus, no stops.
And there's more. It arrives back in the Senate in privileged form, as a message from the House (the message being: we amended your crap) the consideration of which is not subject to filibuster. To be sure, the Republicans (or anyone willing to stand in their shoes) can filibuster the actual debate on the House amendment to Senate amendment, but they can't filibuster the question of whether or not to even have that debate, as they can with most other legislation.
That doesn't mean we're out of the woods, of course. The Senate, at Jay Rockefeller's urging, can still decide it wants to overlook the ridiculous trail of surveillance overreaches and lawbreaking in the "administration's" use of surveillance tools that emerges with each passing day. The Senate, at Jay Rockefeller's urging, can still decide that it quite inexplicably continues to trust the Bush-Cheney "administration" with these tools and that they want to blindly continue in their almost childlike belief that they'll somehow be able to exercise oversight of these immense new powers, despite all of the roadblocks the White House routinely throws up in the way of even the most routine inquiries.
The Senate, and Jay Rockefeller, may yet decide they really do want to stand before the American people and say they they're the last people in the country who trust George W. Bush and Dick Cheney on this, even as the effect of the "administration's" fearmongering fades before their very eyes, and new members are elected to Congress in explicit defiance of it.
They might do that.
But if they do, they'll have to do their own dirty work on it, because Harry Reid and Nancy Pelosi have set up the chess board so that the House won't be forced to do it, nor will it let the Senate just quietly pass their immunity bill away from the now-brightening spotlight that's revealing the extent of the Bush-Cheney malfeasance on domestic spying.
Major kudos to U.S. Rep. Alan Mollohan and U.S. Rep Nick Rahall for voting the right way on this. Jeers to Republican rightwing Rep. Shelley Moore Capito for her continued attempts to undermine the Constitution.
UPDATE: U.S. Rep. Joe Courtney (D of CT-02) explains how the Democrats in the House stood up to Bush and how Republicans targeted him because of it.
The Republican Party is filled with cowards and they believe the rest of America is fearful too. Their fear mongering won't work anymore. They cried wolf too many times.
UPDATE 2:
One of the things I'd love to see Rahall and Mollohan do is to do videos like this for their web sites to help explain issues to their constituents. West Virginia is such a widely scattered state, and much of the media is Republican owned, it'd be nice for their staffs to bring the Congressmen directly to the people through the free services like YouTube.
Democrat Patrick Leahy continues to work front and center in the fight to maintain a FISA law that doesn't provide blanket immunity for telephone companies (and the Bush administration?) from breaking domestic spying laws, despite the fact that the bill is now in the House (where House Dems are - for now - refusing to knuckle under). Leahy's high-profile efforts put him in direct conflict with Senate Intelligence Chair Jay Rockefeller (D-WV) who, along with Dick Cheney, is the immunity provision's chief cheerleader. In fact, Rockefeller continues to categorically reject the notion of any bill without immunity that may be bounced back to the Senate to be reconciled, despite House Speaker Pelosi engagement on the issue.
Leahy and Rep. Conyers (Chair of House Judiciary) have launched FixFISA.com, which is run through Leahy's preferred Blackrock Associates which also maintains the web presence of his leadership PAC, GreenMountainPAC.com, which is hosted on the Get Active server. From the site:
We're at a critical juncture. The House and Senate have passed different versions of the new FISA legislation, and we are meeting to resolve those differences. The president and his Republican allies are using this opportunity to pressure our colleagues to give in and grant retroactive immunity.
That's why we need your help, right now, to push back against the White House while the final FISA bill is being negotiated. Help us respond to White House scare tactics, preserve our civil liberties, and reject the Senate's telecom immunity. Please use this online tool to write a letter-to-the-editor of your local newspaper to speak out and build grassroots support for fixing FISA the right way.
I wish Senator Rockefeller was on the right side on this issue. There are many issues where I'm in agreement with him on. One commenter here not long ago was saying we should just trust his judgment. Well, his judgment is not always right as he showed by his Iraq war authorization vote - a vote he later was wise enough to admit was wrong. And on this issue, Rockefeller needs to realize he is wrong about telecom immunity. It takes a big man to admit when he is wrong. Rockefeller is a big enough man he should realize his error this time before we all pay for it once again.
Instead of battling, Sen. Rockefeller decided it was more productive to join forces, his aides said. He agreed with the administration that a new surveillance law should give phone companies some type of immunity from lawsuits because they participated in "good faith."
Psst. Mr. Rockefeller? Sorry to break the news to you, but that "Senator" title you have? It doesn't mean "Judge." When Congress drafted our intelligence laws, do you really think they intended the "good faith" defense to be determined by someone with a B.A. in Far Eastern Languages and History or by someone with, I don't know, a law degree who sits on the federal bench?
And funny, isn't it, that the administration's and Rockefeller's legal conclusion that the phone companies acted in "good faith" is based upon the word of -- the telecoms. In the legal world-- the one Rockefeller is avoiding at all costs -- that's not justice.
After politicizing intelligence activities and terrorism warnings for so long, the Bush administration is still able to surprise Sen. Jay Rockefeller as he points out in the Washington Post:
Nothing is more important to the American people than our safety and our freedom. As the chairmen of the House and Senate intelligence and judiciary committees, we have an enormous responsibility to protect both.
Unfortunately, instead of working with Congress to achieve the best policies to keep our country safe, once again President Bush has resorted to scare tactics and political games.
snip
While the four of us may have our differences on what language a final bill should contain, we agree on several points.
First, our country did not "go dark" on Feb. 16 when the Protect America Act (PAA) expired. Despite President Bush's overheated rhetoric on this issue, the government's orders under that act will last until at least August. These orders could cover every known terrorist group and foreign target. No surveillance stopped. If a new member of a known group, a new phone number or a new e-mail address is identified, U.S. intelligence can add it to the existing orders, and surveillance can begin immediately.
As Assistant Attorney General Kenneth Wainstein acknowledged while speaking to reporters on Feb. 14, "the directives are in force for a year, and with the expiration of the PAA, the directives that are in force remain in force until the end of that year. . . . [W]e'll be able to continue doing surveillance based on those directives."
If President Bush truly believed that the expiration of the Protect America Act caused a danger, he would not have refused our offer of an extension.
In the remote possibility that a terrorist organization that we have never previously identified emerges, the National Security Agency could use existing authority under the Foreign Intelligence Surveillance Act (FISA) to track its communications. Since Congress passed FISA in 1978, the court governing the law's use has approved nearly 23,000 warrant applications and rejected only five. In an emergency, the NSA or FBI can begin surveillance immediately and a FISA court order does not have to be obtained for three days.
Dude, you keep this up and you're going to realize what a horrible mistake your pushing for telecom immunity really is.
It is clear that he and his Republican allies, desperate to distract attention from the economy and other policy failures, are trying to use this issue to scare the American people into believing that congressional Democrats have left America vulnerable to terrorist attack.
But if our nation were to suddenly become vulnerable, it would not be because we don't have sufficient domestic surveillance powers. It would be because the Bush administration has done too little to defeat al-Qaeda, which has reconstituted itself in Pakistan and gained strength throughout the world. Many of our intelligence assets are being used to fight in Iraq instead of taking on Osama bin Laden and the al-Qaeda organization that attacked us on Sept. 11 and that wants to attack us again.
The president may try to change the topic by talking about surveillance laws, but we aren't buying it.
So why is Senator Rockefeller buying into telecom immunity for their illegal activities?
DNI Mike "Will politicize intelligence for food" McConnell and Attorney General Michael "I'll get right on that when pigs fly" Mukasey have now admitted the obvious: the warrantless wiretapping program conducted by the administration outside of FISA was illegal.
The White House yesterday escalated its most brazen, Orwellian campaign of the last eight years -- shrilly accusing House Democrats of jeopardizing the nation's security by allowing the Protect America Act to expire even though it's the President and House Republicans who blocked any extensions of that law. As the Associated Press pointed out at the bottom of its story:
McConnell acknowledged last week that the White House's refusal to extend the wiretapping law was meant to pressure Congress to pass the Senate bill.
Ponder what it says about our press corps that the White House knows it can (a) block all attempts to extend the PAA and then (b) spend the next several weeks blaming Democrats for helping the Terrorists by allowing the PAA to expire. I know I've made that point before, but this one is so brazen, so transparent and audacious, that it just hasn't yet ceased to amaze.
Unfortunately our own Sen. Jay Rockefeller (D-AT&T) has played along with them by playing the fool as Senate Intelligence chairman.
Whenever two Democrats gather in West Virginia, the topic of conversation inevitably leads to "Whatever happened to Senator Rockefeller?" Many theories are out there, but no one seems to know why he became Dick Cheney's sockpuppet on the intelligence committee regarding telecom immunity.
Still at some point it must trouble him to be seen so much as Cheney and Bush's lackey, right? Afterall it still says Rockefeller after his name so why is he behaving like their cabana boy?
When Democrats stand up to George W. Bush, like they did on Social Security piratization and like they did yesterday in the House on FISA, they give people a reason to support them. this please:
The reason the President refused to extend by 21 days the "Extremely-Critical-to-our-Survival" Protect America Act -- and instead chose to allow it to expire -- is because the only thing that drives the Republicans is forcing Democrats into ritualistic humiliation: forcing them to surrender and bow over and over. While Jay Rockefeller, Claire McCaskill, Herb Kohl, Ken Salazar and their distinguished friends in the Senate happily rolled over as always, House Democrats, for once, actually refused to play their assigned role of submission, and instead issued clear, potent and persuasive counter-attacks from the likes of Steney Hoyer, Silvestre Reyes, and this one from Chris Van Hollen:
Several Democrats said yesterday that many in their party wish to take a more measured approach to terrorism issues, and they refused to be stampeded by Bush. "We have seen what happens when the president uses fearmongering to stampede Congress into making bad decisions," said Rep. Chris Van Hollen (D-Md.). "That's why we went to war in Iraq."
When Democrats speak that way -- clearly and with conviction -- the message gets across.
As spruceshoe points out in the comments below, rightwing Republican Rep. Shelley Moore Capito resorts to practicing terrorism on her constituents. She shamelessly lies about FISA in order to support lawbreakers like George W. Bush, Dick Cheney and the telecom companies.
Make no mistake: Capito is lying about this, either out of shameless cowardice on her own part or in order to pander to Bush and the rightwing extremists in her own party. Neither is acceptable.
To take Bush at his word, he would rather place the immunity of the illegal activity of AT&T and other telecoms ahead of national security interests. And Capito will support him every step of the way.
I've spent a lot of time fighting for the U.S. Constitution by opposing our own Democratic Sen. Jay Rockefeller, a man who I had a great regard for in the past. I hope this blog post, I wrote on Dec. 28, 2005, can explain it.
...
When in the course of my travels I am with children in Washington, D.C., I point to the U.S. Capitol and say, "Do you know who owns that building on the hill?"
They invariably shrug. "You do," I say. "You own that building. It's beautiful, isn't it?"
"See that one there and there" and I point to the Smithsonians and the National Archives. "You own them too."
And just as invariably you can see them look at the Capitol in a new light.
I remember the first time I made this point to a 7-year-old. We were walking across the Mall. Her brown eyes got big and she asked me which room belonged to her.
"All of them," I said. "It belongs to you. You own that building as much as anyone in the land. You have to share it with your grandmother and your aunt and me and 295 million other people in this country."
I asked her if she remembered the White House we had walked by earlier in the day. She nodded. "You own that too. The president lives there, but he just borrows it. You own it. And if the president walks up to you, you can tell him `My name is Ariel and you work for me.'" (This was in 1994. Bill Clinton was president. He met with ordinary Americans without fear of their dissent.)
I told her of the American Revolution and how the colonists bravely overthrew a king and that because of that she never needs to bow down to anyone because of what they did, that she is the equal to any king or queen on the planet.
I pointed to the National Archives and how it stores the Constitution and how the Founding Fathers wrote it to create a new covenant between the people with each other. I told her that the Founding Fathers knew they couldn't make anything perfect, but they tried anyway with the Constitution. I'm sure a lot of what I said went over her head, but she listened anyway.
This is one of the reasons I am so angry at the administration of George W. Bush.
My family may not own much. Our house may be small and our vehicles have too many miles on them. But we own some pretty property in Washington, D.C., some terrific forests and beaches and wetlands across the country. We own them. We all own them.
And we own that piece of paper in the National Archives. Those words and what they represent belong to all of us.
People died to give them to us and people died to preserve them for us.
Yet Bush wants to take it away from us. From his efforts to open up the Arctic National Wildlife Refuge to his trampling on the Constitution to create an imperial presidency, he is taking away what is mine.
While it is important to hold the junior senator from West Virginia accountable for his abomination on civil liberties, it also is important to recognize and thank Sen. Robert C. Byrd for voting the right way today.
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
Bush weighed in on FISA in his Fox News interview: "I think we're going to get a good bipartisan bill and so I applaud those Democrats. I'm not going after those Democrats.
The Senate today -- led by Jay Rockefeller, enabled by Harry Reid, and with the active support of at least 12 (and probably more) Democrats, in conjunction with an as-always lockstep GOP caucus -- will vote to legalize warrantless spying on the telephone calls and emails of Americans, and will also provide full retroactive amnesty to lawbreaking telecoms, thus forever putting an end to any efforts to investigate and obtain a judicial ruling regarding the Bush administration's years-long illegal spying programs aimed at Americans.
Was the pat on the back from Bush worth throwing away the rule of law, Sen. Rockefeller? Is Bush's praise more important than the years of ridicule you'll face from those who respect the Constitution and the rule of law?
Copyright 2011 West Virginia Blue
Site content may be used for any purpose without explicit permission unless otherwise specified.
This site exists thanks to financial support from BlogPAC, dedicated volunteers and participation by members of this community. The views expressed at West Virginia Blue belong solely to their respective authors.
