During a long career in public service and private practice, Michael B. Mukasey has forged an independent path as a lawyer and federal judge.

"I don't want to use the word 'disappointed,' but he hasn't provided the balance that I had hoped for"

...let us stand tall, knowing that by working together we were able to make wiretapping and retroactive immunity part of the national discourse these last number of months.

We came together - all of you, Senator Feingold, bloggers like Jane Hamsher and Glenn Greenwald, organizations like the EFF and ACLU, and untold hundreds of thousands of Americans who simply wanted to make sure that this one, last insult did not happen with ease.

I'm sorry we weren't successful.

Five years ago, Congress killed an experimental Pentagon antiterrorism program meant to vacuum up electronic data about people in the U.S. to search for suspicious patterns. Opponents called it too broad an intrusion on Americans' privacy, even after the Sept. 11 terrorist attacks.

But the data-sifting effort didn't disappear. The National Security Agency, once confined to foreign surveillance, has been building essentially the same system.

The central role the NSA has come to occupy in domestic intelligence gathering has never been publicly disclosed. But an inquiry reveals that its efforts have evolved to reach more broadly into data about people's communications, travel and finances in the U.S. than the domestic surveillance programs brought to light since the 2001 terrorist attacks.

According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected.

The NSA's enterprise involves a cluster of powerful intelligence-gathering programs, all of which sparked civil-liberties complaints when they came to light. They include a Federal Bureau of Investigation program to track telecommunications data once known as Carnivore, now called the Digital Collection System, and a U.S. arrangement with the world's main international banking clearinghouse to track money movements.

The effort also ties into data from an ad-hoc collection of so-called "black programs" whose existence is undisclosed, the current and former officials say. Many of the programs in various agencies began years before the 9/11 attacks but have since been given greater reach. Among them, current and former intelligence officials say, is a longstanding Treasury Department program to collect individual financial data including wire transfers and credit-card transactions.

Today the US Senate, in an unprecedented act, granted retroactive immunity to telecommunications companies that illegally spied on Americans in cooperation with the Bush Administration. Amendments that would have reiterated support for the 1978 FISA law, including Dianne Feinstein's so-called "exclusivity" amendment that would have confirmed FISA as the exclusive arbiter of wiretap legality, were rejected. Feinstein's "good faith" amendment was rejected, as were Chris Dodd and Russ Feingold's effort to strip telecom immunity from the bill.

Significantly, Dianne Feinstein helped to kill the Dodd-Feingold effort to strip telecom immunity from the bill. And while she did ultimately vote against the FISA bill, it came after she voted FOR cloture on the bill. Were she truly interested in stopping the bill she would have joined Senators Feingold, Dodd, and Leahy in voting against cloture.

Feinstein's press release would have us believe she did all she could to stop immunity:

However, I believe this bill didn't do enough to protect against the assertion of executive power. I have said on many occasions that without the additional language to strengthen and tighten the exclusivity already in FISA, I could not support final passage....

There should never be another warrantless surveillance program. And I continue to believe that there should be a strong statement in law making it crystal clear that FISA must be followed, period.

But her votes against the Dodd-Feingold amendment, and her vote for cloture, contradict these claims. The sad truth is that Senator Feinstein failed to take a consistent stand against telecom immunity and against this bill, and the result is a bill that gives the White House everything it had demanded of the Senate.

Reaction around the blogosphere was damning. At Calitics David Dayen said "Feinstein pulled a Lieberman here" and "[sold] us out and give the phone companies what they wanted for violating civil liberties." Kagro X at Daily Kos said "The US Senate commits suicide on national television" and wondered why Senators even bothered to show up for work if all they were going to do is legitimate Bush's flouting of the law. Glenn Greenwald denounced the entire proceeding:

I used to think that amnesty supporters held their position because they didn't understand this extremely simple point, but now I think that most of them have their position precisely because they do understand it. A lawless "police state" -- and that's the only term that can be used to describe what this bill creates -- is exactly what our political establishment desires.

This defeat stings. Many believed that Feinstein would never have come around and joined us in defense of the Constitution, and that this outcome was assured back in December when Harry Reid brought the immunity-giving Senate Intelligence Committee bill to the floor, and it certainly has played out that way. But it doesn't make it any easier to swallow the stunning abrogation of basic constitutional principles, the direct assault on the rule of law, and the creation of a potential police state - all of which are the outcomes of today's vote. History will not remember this day well.

The fight is not yet completely lost. The House must now reconcile the Senate's evisceration of FISA with their own RESTORE Act, a much better bill that does not grant telecom immunity. Glenn Greenwald and Firedoglake are hosting a petition to convince the House to defend the RESTORE Act and reject the Senate's granting of immunity. It may seem like a longshot, but given the stakes, fighting hard on FISA is well worth the effort.

Tomorrow will witness the final votes in the Senate on the remaining amendments to the Senate Intelligence Committee's immunity-giving FISA reform bill. When those votes are done, there will be a cloture vote on the bill as a whole, and 60 votes are needed to invoke cloture. Today Pat Leahy, chairman of the Senate Judiciary Committee - which offered a much better bill that Reid chose to not bring to the floor - announced he would join the Dodd's efforts to stop cloture. As reported by mcjoan at Daily Kos:

"This is signficant, in that one committee chairman, Leahy for the Judiciary Committee, is stating his clear opposition to the work of another chairman, Jay Rockefeller at Intelligence:

Tuesday, February 12 is a critical day in our fight to stand up for American values and preserve our freedoms while protecting our national security. The Senate is voting on amendments to FISA, the Foreign Intelligence Surveillance Act, the law governing the use of wiretaps and other means to conduct surveillance of foreign threats.

Unfortunately, the new FISA bill we'll be voting on still has many problems. I will do everything in my power -- including joining my colleague Chris Dodd in a filibuster against this legislation -- to fix it.

The procedure for tomorrow is that votes on the outstanding amendments will begin at 10:00. After these votes happen, they'll have the cloture vote. When Leahy and Dodd say they will filibuster, it means that they will vote against the cloture vote on the bill to continue debate. If they are successful in preventing 60 votes for cloture, the debate can continue for as long as 30 hours. If they fail to prevent cloture, Dodd has four hours reserved for him and his colleagues like Leahy to convince enough fellow Dems to vote against final passage."

Leahy has a contact tool to help mobilize pressure on the Senators - including Feinstein - to get them to oppose immunity and oppose cloture.

Glenn Greenwald explains, though, that mcjoan is wrong to call this a "filibuster" - there won't be any effort to hold up all of the Senate's business, that even if cloture is not invoked there would only be another 30 hours of debate. Further, the unanimous consent agreement that Reid, Dodd, and others made with the Senate GOP two weeks ago provides for 60-vote threshholds for key Democratic amendments, including Feinstein's, that are not actually expected to be achieved. The GOP gets to have the outcome of a filibuster here without having to go through the actual motions.

As usual, Greenwald offers some excellent framing, reminding us that these telecoms are *lawbreakers*:

Whatever else is true about these telecoms that are about to be granted this extraordinary gift from Congress -- no matter how many times they are lavished with the creepy Orwellian phrase "patriotic corporate citizens" -- it is undeniable that they are deliberate lawbreakers. That's why they need amnesty in the first place. Any amnesty advocate who denies that central fact is arguing from a position of deep dishonesty. Bestowing retroactive telecom amnesty is nothing more than the latest step in creating a two-class legal system in America, where most citizens suffer grave penalties if they break the law, while our most politically powerful and well-connected actors are free to do so with impunity.

Greenwald goes on to argue that the Blue Dogs in the House will likely play the same role Reid, Rockefeller and Feinstein have played in the Senate - enabling the Bush Administration's lawbreaking as well as that of those who aided them - but still sees value in trying to lobby the House anyway:

There is some small chance that the House will impede -- if not stop -- at least some of the more extreme Cheney/Rockefeller provisions. As The Nation's Ari Melber reports: "A trio of Democratic House Committee Chairmen [Dingell, Markey and Stupak] are stepping up the fight against President Bush's surveillance bill this week, vowing to beat back a controversial proposal to grant retroactive amnesty to companies accused of illegally spying on Americans . . . circulating a letter urging their colleagues to stand firm and keep amnesty out of the final spying bill.

Unfortunately, the House "Blue Dogs" are basically the House version of Jay Rockefeller and Harry Reid and can, and likely will, single-handedly ensure that the House joins the Senate in complying in full with Bush's demands. But as long as the prospect remains that it can be stopped in the House -- and "an ACLU spokesperson told The Nation that the action by House leaders is the only 'ray of hope' to scuttle amnesty" -- it is worth trying. We'll have a petition and various action steps posted tomorrow once the Senate votes in favor of warrantless eavesdropping and telecom amnesty."

The Courage Campaign has been leading the effort to get Senator Feinstein to stand up for our Constitution and to support Dodd's efforts to block cloture. Visit our FISA page for more information, including our in-depth report explaining why Feinstein's "good faith" amendment is such a bad idea. Call Senator Feinstein and tell her to protect your rights and stop lawbreakers from getting away with it:

Call one of following phone numbers (if one is busy, call the next number):

202-224-3841 (Washington, DC)
310-914-7300 (Los Angeles)
415-393-0707 (San Francisco)
619-231-9712 (San Diego)
559-485-7430 (Fresno)

If Senator Feinstein is not your Senator, please call the Capitol switchboard toll-free to contact your Senator:

1-800-828-0498

Senator Feinstein's office has responded to our criticisms:

"Today's post on Senator Feinstein's amendment to the FISA bill contains a number of serious and misleading factual errors.  I write to correct the record, and I hope that you will update your post with this information.
 
1. You write the ACLU has been "vocal in their opposition" to the Feinstein amendment.  Not true.  They have not taken a position on the Feinstein amendment."

 
2. Additionally, you quote Tim Sparapani, ACLU senior legislative counsel, as evidence of the ACLU's opposition.  This quote – which appeared in The Hill, not Roll Call – is not in reference to the Feinstein amendment, but to the Specter amendment.
 
              "The ACLU, meanwhile, has condemned the Specter amendment because it believes the measure leaves some loopholes open to the government."  (The Hill, DoJ, ACLU cool to Specter's FISA deal, 01/17/08) http://thehill.com/leading-the-news/doj-aclu-cool-tospecters-fisadeal-2008-01-17.html

 
We did not claim this quote applied to Feinstein's amendment directly. Instead we used it to illustrate the reasoning behind our own opposition to Feinstein's amendment. More on this below. They are correct that the email sent out to Courage Campaign members said the quote was from Roll Call not The Hill. It is our mistake.

3. As for the content of the Sparapani quote, it does not apply to the Feinstein amendment providing independent judicial review of immunity claims.
 
                   He said:  "Unless Congress wholly rejects [the] executive privilege or state secrets claims, there are legal hurdles that could prevent the full hearing of the matter in federal court," said Tim Sparapani, ACLU senior legislative counsel.  "We also oppose having the FISA court making the good faith determination unless outside parties are allowed to argue in front of the secret court, which has never happened before.  Otherwise, only one side is represented."
 
Let me explain how it doesn't apply:
· First, the Feinstein amendment specifically rejects the state secrets claim.
 
· Second, the Feinstein amendment specifically allows outside parties to argue their case in front of the FISA Court.  The court's ruling can also be appealed to a higher court.

But even if it allows outside parties (and even then only those who have already filed lawsuits, disempowering other Americans who have not yet filed), and even if their ruling can be appealed, that is still not the same as public, open courts handling this issue. And further, it would still potentially allow immunity - which we still flatly oppose - and would still use the discredited "good faith" determination to grant such immunity. The deck would remain stacked against plaintiffs and against the rule of law.

Bottom line:  This amendment preserves independent judicial review of the telecom company's immunity claims.  If it can be shown that the companies were not acting based on legal government certification and not in good faith, then their claims of immunity can be denied by the Court.

In yesterday's press release they said "OR" in good faith. Which is it - "and good faith" or "or good faith"?
 

This is a reasonable alternative.  It adds court review of any immunity.  It allows the companies and the plaintiffs to make their case before this federal court skilled in intelligence.

We strongly disagree that this is a reasonable alternative. It is wrong for the FISA court or the US Senate, directly or indirectly, to grant or make possible immunity for illegal activity. No matter how Feinstein dresses this up, this is fundamentally designed to give the appearance of protecting legal rights while setting up a process that is virtually certain to provide immunity anyway. 

“This plays right into the hands of the Republicans.”

“Our only goal is to elect a Democrat into the White House in 2008.  Nothing should distract from that.”

These the main sound bites from Senator Art Torres at the California Democratic Party meetings this weekend.

They should be the talking points of the grassroots Democrats whose anti-torture platform was shot down yesterday.

The actions of Torres, committee chair John Hanna, and others in the California Democratic Party leadership played right into the hands of the Republicans.  The core principles of the Democratic Party – freedom and upholding the constitution – were blatantly violated by one of our members, Senator Dianne Feinstein.  The message our resolution sent was simply that we expect better from our Senator, because nothing distracts more from electing a Democrat to the White House in 2008 than weak-kneed Democrats in Congress who betray even the most basic Democratic principles.

Torres and Hanna’s strong-armed tactics played right into the hands of the Republicans.  They have sent the wrong message to California, and the wrong message to America.

Hi Julia,

You have changed the conversation inside the California Democratic Party. 30,033 of you, to be exact.

Last night, the Women's Caucus of the California Democratic Party approved your resolutions to censure Senator Dianne Feistein. Then, in a speech before hundreds this morning, Party Chair Art Torres immediately and directly addressed your movement to censure Senator Feinstein.

This three-day event has been transformed by your activism. I am sitting at the meeting, with my computer on my lap, constantly refreshing the signature totals on the Senator Dianne Feinstein censure resolution.