'Strange bedfellows' team up to lobby against wiretap bill
Nick Juliano
Published: Friday June 20, 2008

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Updated below: Republican Sen. Specter opposed to FISA compromise

With a vote expected as soon as Friday on a controversial surveillance law, activists are shifting into high gear a lobbying effort aimed at convincing moderate Democrats to stand for civil liberties and against a whitewash of lawless behavior from the Bush administration.

The American Civil Liberties Union is teaming with supporters of former Republican presidential candidate Ron Paul and scores of liberal bloggers to pressure Congress on the surveillance law; the effort is calling itself Strange Bedfellows.

House and Senate leaders announced Thursday they had reached an accord in a yearlong fight over domestic spying; the deal would essentially legalize the National Security Agency's warrantless wiretapping program and would cause courts to dismiss privacy lawsuits pending against the telecommunications companies that facilitated the program. Salon's Glenn Greenwald provides a lengthy analysis of the new bill.

The ACLU says the new deal is "crap" and unconstitutional, comparing it to a lousy bill the Senate passed last year.

"Remember that horrible bill the Senate passed earlier this year? The one that had virtually no Fourth Amendment protections? Ok, now imagine Congressman Hoyer and Senator Bond putting a really pretty, really meaningless bow around it to distract you from what’s actually inside," Amanda Simon writes at the ACLU's blog. "Then they added a giveaway to the phone companies. There. Now you have the current FISA bill."

Parallel to the civil liberties' lobbying push is an effort being spearheaded by the Blue America PAC that aims to raise $350,000 to campaign against lawmakers who support giving immunity to the telecommunications companies, including moderate and conservative Democrats. Markos Moulitsas, founder of DailyKos, laid bare the challenge Thursday:

When we started this "netroots" thing, we worked to get "more and better Democrats" elected. At first, we focused on the "more" part. This year, we're focusing a bit more on the "better" part. And in 2010, we'll have enough Democrats in the House to exclusively focus on the "better" part.

That means primary challenges. And as we decide who to take on, let it be known that this FISA vote will loom large. Voting to give telecommunication companies retroactive immunity may not guarantee a primary challenge, but it will definitely loom large.

We kicked Joe Lieberman out of the caucus. We got rid of Al Wynn this year. Those were test runs, so to speak. We've got a lot more of that ready to unleash in 2010.

Already, liberal bloggers are working to unseat incumbent Democrats who support the administration's request for immunity, such as Reps. Chris Carney and John Barrow.

In an effort to provide more immediate pressure to Capitol Hill, several blogs are encouraging their readers to call their representatives and urge votes against the compromise surveillance law. Firedoglake's Christy Hardin Smith writes:

Please get on the phone and tell your members of Congress (Senate and House) that voting for a bill that is being railroaded through without them being given an opportunity to review it for constitutional and civil liberties concerns is unconscionable. No telecom immunity, no violation of fourth amendment rights with blanket warrants -- no vote unless and until the bill is fully vetted by people who respect the rule of law. If you'd like to help with our campaign on this, you can do so here.

Lawmakers are considering an update to the Foreign Intelligence Surveillance Act, a 1978 law that prevents foreign intelligence agencies from spying on Americans without first receiving a warrant. Legal experts say the Bush administration violated this law with the massive wiretapping and datamining programs it implemented after Sept. 11, 2001, and possibly before.

Democratic leaders in the House like Majority Leader Steny Hoyer and Speaker Nancy Pelosi heralded a FISA bill unveiled Thursday as a bipartisan compromise, but lawmakers who are most concerned about civil liberties protection like Senate Judiciary Committee Chairman Patrick Leahy and Sen. Russ Feingold panned the bill.

The "compromise" measure would have federal courts review nearly 40 pending privacy lawsuits and dismiss them if the telecom companies received a "written directive" from the government ordering them to begin surveillance. Timothy B. Lee, writing for the libertarian Cato Institute, says this compromise is nothing of the sort:

It seems to me that this misses the point rather badly. Under our system of government, searches are conducted pursuant to warrants or other court orders. This is an important check on the executive branch’s surveillance powers because it ensures an independent magistrate will review any surveillance activity and block those that aren’t conducted pursuant to the law.

To treat a “written directive from the government” as a substitute for a court order is to abandon this fundamental principle. Once we accept the premise that the executive branch can “authorize” surveillance without judicial oversight, the standard of review for analyzing the resulting “written directives” is entirely beside the point. I don’t care if the Bush administration wrote letters to telecom companies “certifying” that participation in the warrantless spying programs was legal. That’s not how the law works. These are large companies with plenty of lawyers on staff who know this area of law as well as anyone in the executive branch. They could and should have done what Qwest’s former CEO says he did and told the Bush administration to come back when they had a relevant FISA warrant.

The fight over updating FISA has gone on for nearly two-and-a-half years, beginning soon after the New York Times revealed the administration's warrantless wiretapping program in December 2005.

A temporary measure passed last summer expired in February, when House Democrats actually showed some backbone and refused to rush through an even-worse FISA update measure that had passed through the Senate.

It should be noted that the House has previously been able to pass an immunity-free FISA update, although there are not enough votes in the Senate to overcome a Republican filibuster. Rather than keeping up the fight to avoid immunity, Democrats seem ready to fold and turn their sights to election preparations.

The top Republican on the Senate Judiciary Committee also announced his opposition to the compromise deal Friday.

"I am opposed to the proposed legislation because it does not require a judicial determination that what the telephone companies have done in the past is constitutional. It is totally insufficient to grant immunity for the telephone companies’ prior conduct based merely on the written assurance from the administration that the spying was legal," Sen. Arlen Specter (R-PA) said in an e-mailed statement.

"The provision that the bill will be the exclusive means for the government to wiretap is meaningless because that specific limitation is now in the 1978 Act and it didn’t stop the government from the warrantless terrorist surveillance program and what the telephone companies have done. That statutory limitation leaves the president with his position that his Article II powers as commander in chief cannot be limited by statute, which is a sound constitutional doctrine unless the courts decide otherwise. Only the courts can decide that issue and this proposal dodges it."