5 posts tagged “civil liberties”

In the last couple of weeks very important things have been going on in the realm of Civil Liberties, and our concern for issues like Health Care, Iran, Afghanistan and the Chicago bid for the Olympics have distracted us from it. And  it is not going well. You can help. Help put pressure on the US Senate and House of Representatives to put important protections of the rights of "US persons", our citizens and resident aliens into the law as it is renewed.

If you listen to Fox News, "Some on the Left" or "Some Democrats" want to strip the federal government of critical powers to protect us from terrorists. Unfortunately, as they are making these claims in defense of the USA PATRIOT Act, they get most of the facts wrong. Julian Sanchez of the CATO Institute has a video and blog posting that tears their coverage apart.

So what is really going on? If the Democrats aren't trying to completely eliminate valuable anti-terrorist tools, what has been happening the last two weeks?

First of all, several sections of the USA PATRIOT Act are up for re-authorization, because they were passed with a "sunset clause" that makes them expire at the end of the year. According to even official Inspector General reports from both administrations, the Patriot act has lead to substantial abuse of US Citizens constittution rights. In response to these abuses Senators Feingold and Durbin introduced an act called the "JUSTICE Act". "JUSTICE, like "USA PATRIOT" is a goofy acronym, in this case standing for "Judicious Use of Surveillance Tools In Counterterrorism Efforts. Note that while I'll call the acronym goofy, but the act itself is far from that. It basically insures that a number of these special powers authorized in the USA PATRIOT Act and other post-9/11 legislation are only used against terrorism, that the government has to establish a connection to terrorists in order to use "John Doe roving wire taps", "sneak and peek" secret searches, "National Security Letters" and other procedures.

Resources: Feingold and Durbin's fact sheet on JUSTICE and the actual text of the bill.

A broad coalition supported the JUSTICE Act. Senator Leahy, however, submitted his own bill that offered fewer limitations and protections and the Senate Judiciary Committee (SJC), which Leahy heads, decided to use it as a starting point. Many of us started to agitate to get pieces of the JUSTICE Act supported as amendments to the Leahy bill. The evening before the bill was taken up by the committee, Diane Feinstein, chairman of the Senate Intelligence Committee made a deal with Leahy. An even weaker bill that she largely wrote, and which he cosponsored, replaced the Leahy bill as the starting point. Only a small amount of work happened on that bill last Thursday, before it was postponed until this coming Thursday, due to conflicts caused by the Senate also doing markup on the Health Care bill which was drawing Senators away.

Resources: Comparisons of the JUSTICE Act and Leahy's bill from Center for Democracy and Technology, Julian Sanchez on Cato@Liberty, and Marcy Wheeler on Emptywheel.
Resources: Reactions to last week's SJC meeting from the EFF, the ACLU, David Kravetz, Wired's Threat Level

And that brings us to this week and Thursday's coming second round of markup on the bill. We, that is grass roots civil libertarians, Get FISA Right, the ACLU, the EFF and others, would like you as citizens, as bloggers, as Facebook and Twitter users to make you voices heard. We'd like you to blog, tweet and write about this effort in order to get as many people as possible involved, and for all of you and them to bring pressure to bear on your senators, especially if one of your senators sits on the Judiciary Committee, and your Congressmen and any other Senators and Congressmen you may support, contribute to or know, to do the right thing. To work for and support amendments, whether they come from the JUSTICE Act or other sources that restrict the circumstances and the purposes under which these powers can be used.

Why? Well, I started out bashing Fox coverage on this, let me now shift to praising one Fox commentator and recommending that you listen to his highly knowledgeable and impassioned speech against the USA PATRIOT Act and National Security Letters. Please watch Judge Andrew Napolitano's speech on "Natural Rights and The Patriot Act", shown here. His explanations of the history of our Constitution, laws and the abuses of citizens' rights regarding the USA PATRIOT Act and National Security letters are well worth listening to whether your politics are left, right or center. I recommend watching all three parts.

As ever, I don't want you to just believe what I say. I want you to read and listen and learn. Form your own opinions. I've included a number of links to pertinent resources in the posting above and the two videos. Get FISA Right has a resource page with more links and more calls to action. Please read there. Join us when several of us live blog during the hearings on Thursday. If you agree with us sign and retweet our Twitter petitions. Blog about what you believe, but above all, be a Free Voice. Be a voice for freedom.

Resources: Our Twitter Petition: "@RussFeingold and @SenDurbin, thanks for your tireless efforts to reform the #patriotact http://act.ly/kn (please RT)"
Resources for activists: Get FISA Right's "How to help bring JUSTICE to the PATRIOT Act" page.
Resources for bloggers: Get FISA Right's "JUSTICE Act blogger resources" page.
Resources: For live-blogging: Get FISA Right's Patriot Act Action Hub

Vox Libertas,
Jim Burrows

Mr. President,

It is with great sadness and regret that I must decline your emailed request. I do this with intimate and personal knowledge of how important this legislation is. I am a computer consultant by profession, and with the downturn in the economy, my income has been slashed to a small fraction of what it once was. In fact, our family has had to rely heavily on my wife's part-time income while I attempt to build a whole new business. Last week, that reliance ended. In a fall down the cellar stairs, my wife broke one ankle and the other foot. Because I have been self-employed for the last 2.5 years and my wife is only a part-time employee with no benefits, our only health insurance is what we can afford to pay for out of pocket. The bills arising out of her injury and her inability to work combine put us in a precarious position.I find myself having to rely on the charity of others, on the Council for Aging in our small town, on volunteer organizations such as Household Goods Recycling of Massachusetts, and the support of family members.

Believe me, sir, I know how important health care reform is. I understand intimately how critical the Recovery and Stimulus plan are. I could not believe more in the important work that lies before you economically and with regard to health care. I understand that health care was, quite understandably your primary object during much of the campaign and that the economy has become both a problem of its own and an obstacle to the extremely hard work of making progress on health care.

Sadly, sir, while I believe all that, and my own livelihood and home are threatened by the dual threat of healthcare costs and the collapsed economy, none of that is my primary concern. No, sir. My concern is for the health of our Republic and not of the body or the economy. I love my wife, and I love my family, and I love my home. But we are strong and we will survive, somehow. My deepest concern is for the heart and soul of this country, for the Rule of Law, for the principles upon which this great nation was conceived, and to which it is dedicated. And that, sir, I believe is endangered. It is endangered by torture; by indefinite detention; by warrant-less surveillance, search and seizure; by kangaroo courts that fail to uphold either our civilian laws or the uniform code of military justice; by the notion that the highest ranking officials can break our laws and not be investigated, let alone prosecuted; by a government that clouds its crimes in claims of secrecy and unspecified nationally security. Today, sir, it is endangered by you.

After eight years of a Presidency that plumbed depths of deceit, greed, corruption, war crimes and the arrogation of raw power, I voted for you in hopes that we could turn the page, that we could heal this land, that we could restore the rule of law. Sadly, sir, it seems that we cannot; that your view of the presidency, of executive privilege, of state secrecy, of the immunity of the powerful from the rule of law is too tainted by the power illegitimately accrued by your predecessor. It seems, sir, that the old adage is true. Power corrupts and absolute power corrupts absolutely.

So, no, sir, you may not have my voice on health care, nor on the economy. You may not have it even though the woman I love is in bad need of better health care, even though this economy is depriving me of the ability to support my family. At this time, even in the face of those great crises, I have only enough voice for this: "Return us to the Rule of Law, not men." Close Gitmo. Stop the Military Commissions. Try the prisoners or free them. Forswear prolong and preventative detention. Investigate the War Crimes and prosecute the guilty.  Stop hiding behind Executive Privilege and National Security. Save my country. Save it for my children and their children. Save it for your children. This is not a distraction. Without our Soul this country dies.

I will find some way, through the charity of strangers, the support of my family or the Hand of Providence to get my wife the care she needs. I will find a way to join with others to build a company to employ us all and save our homes and livelihoods. It will be hard, but since they brought my multi-great grandfather to these shores in chains for the crime of being a Scot and supporting the wrong absolute ruler, my family has found a way to do those things. Somehow, I and mine will find the way to protect and fend for ourselves. What you, sir, must do, is defend this country, and despite all that has been said in this new century, the threat to this country is not foreign fanatics. It is domestic fanatics. It is power misused, law abandoned. It is forgetting what makes this nation great. It is abandoning our principles.

I am not of your party. I am an independent. Yet, I voted for you, and worked for you and wept with joy to see a man with your background, both in heritage and in principle, elected President. The promise of it! The hope. Live up to that hope, sir. Give us back our Country. That, above all, is what we need. Then, sir, I will join you in working for health care and the economy and the other great works there are before us.

Jim Burrows, aka Brons - Vox Libertas

[In order to get the discussion moving I posted this at GetFISAright and Change.org yesterday. Today, it is going to all versions of Vox Libertas except DKos. It will follow there. Please join the discussion in any or all of these. It is important that we get this right.]

As a member of "Get FISA Right", I find myself asking, "What does 'get it right' mean?" I don't have a definitive answer, but let me give a few thoughts as a basis for a discussion of the topic.

The Foreign Intelligence Surveillance Act (FISA) was originally passed in 1978 order to balance the legitimate need to spy on the nation's foreign enemies, with the Constitutional rights of her citizens, and especially to curb existing abuse. Technology has changed dramatically since it was written, and our enemies are different. Also, there has been a new round of abuse. All of these must be addressed.

To "get it right", let me suggest that we need:

1. One law that covers all spying
2. Require warrants when the US spies on
1. Anyone in the US
2. US persons (citizens and resident aliens) anywhere
3. Allow the intelligence agencies to spy freely on foreigners oversees, even if the taps are in the US
4. Require Executive, Judicial and Congressional oversight when protected and unprotected communications are entangled.
5. Criminalize violation of the Constitution.

Item #4 is a knotty one. Since foreign and domestic traffic flows through the same "pipes" and is in the clear, and it is not easy to tell just from the content who the participants are, software that sorts what can legally be captured from what cannot can violate the Constitution and the law if it uses the wrong algorithm or has a bug. This is what the "targeting" and "minimization" procedures are all about. There must be diligent oversight, and it requires esoteric expertise. It requires nerds and Constitutional Law experts. And the jurisdiction to oversee.

#5 may seem superfluous, but is important. If your Constitutional rights are violated, you can sue, but only if you prove you have "standing". If the violation was done in secret, that can be hard to prove. If the criminal law is violated, the Department of Justice and Law Enforcement can and should investigate and prosecute.

That's my framework. What do you think?

For a longer discussion, let me recommend the following blogs from last summer (disclaimer: #3 is by me):

1. David Kris's "A Guide to the New FISA Bill", Part I, Part II and Part III.
2. Wes Walls' "Understanding Recent Changes to FISA -- A Visual Guide (Flowchart)"
3. Jim Burrows' "I think I understand the FISA bill. Do I?" (at Blogspot. Also on Daily Kos, LiveJournal, MySpace, and Vox)
4. Wes Walls' "FISA Revisited"
5. Paul Russell's three-part "Figuring Out FISA"
1. Part I - A Guy Named George
2. Part II - The Unitary Executive Strikes Back
3. Part III - The Pride of Rube Goldberg

Today the rule of law, the checks and balances and the rights reserved in the Bill of Rights were damaged as the FISA act was once again altered and retroactive immunity was authorized for law breaking telecoms. A lot has been written about this. I will not add to that.

Instead, I thought I would point out a pair of quiet revolutions that took  place over the last couple of years that got very little coverage. I do so for two reasons. First it is worth noting that not all of the battles for civil liberties in the last couple of years have been lost, and second, it is important to realize that major changes both for good and ill can happen with virtually no one noticing.

The day after the Military Commissions Act was passed and habeas corpus damaged, a second important protection was virtually wiped away—Posse Comitatus. If the weakening of habeas corpus dredges up images of King John, Runnymede, and the Magna Carta, Posse Comitatus should put us in mind of Julius Caesar and the crossing of the Rubicon. The Posse Comitatus Act of 1878 basically forbids the use of the US military or the National Guard under federal control within the United States. It keeps the government from using the miltary on its own citizens. It is essentially the modern version of the Roman law that forbade the legions from crossing the Rubicon into Italy proper.

The Insurrection Act of 1807, on the other hand, authorizes the use of the military and the federalized militia to deal with  lawlessness, insurrection and rebellion within the country. The tension between the two acts defines the ways in which the President may legitimately use the military domestically.

The expansion of the Insurrection act came on the "John Warner National Defense Authorization Act for Fiscal Year 2007". Section 1076 of that law rewrote Section 333 of title 10 of the U.S. Code, the Insurrection Act. I wrote a blog posting dealing with the changes a year ago, and also produced a  page showing the changes in detail. To summarize quickly, the circumstances under which the President could use the military within the US was expanded from insurrection and rebellion to include "natural disasters, public health emergencies and terrorism", and most alarmingly of all "other circumstances" and left the determination of whether these circumstance pertained to the President.

In short, under the new law, if the President determined that a situation of domestic violence, conspiracy or "unlawful combination" has hindered or obstructed the execution of the laws, and that this is one of those "other circumstances cited in the law, he may federalize the National Guard and use it and the armed forces. This basically made the power to declare martial law and arbitrary power of the President.

The good news is that the "National Defense Authorization Act for Fiscal Year 2008" (HR 4986) which was passed and signed by the President in late January completely undid these changes, and the Insurrection Act and Posse Comitatus have returned to their original balance. The bad news is that it had to be done on the QT. Nearly a year before HR 4986 was passed, Senator Leahy, with the support of Kit Bond, Senator Hagel and 10 Democratic Senators introduces S. 513, a bill that would have done the same thing. It died in committee. Only by burying it in the defense authorization act could they sneak it through.

Civil Libertarians would have celebrated this victory except that it went unheralded, and in fact if you look for news stories about the change which was signed at the end of January, you will find that many are dated at the end of April.

Those of you who paid attention to the Senate debate over the last couple of days on the FISA and telecom immunity legislation will recognize the names of the senators who were willing to stand up for Posse, as sponsors or cosponsors of S 513:

• Sen. Patrick Leahy [D-VT]
• Sen. Christopher Bond [R-MO]
• Sen. Sherrod Brown [D-OH]
• Sen. Robert Byrd [D-WV]
• Sen. Maria Cantwell [D-WA]
• Sen. Thomas Carper [D-DE]
• Sen. Robert Casey [D-PA]
• Sen. Russell Feingold [D-WI]
• Sen. Charles Hagel [R-NE]
• Sen. Mary Landrieu [D-LA]
• Sen. Blanche Lincoln [D-AR]
• Sen. Ken Salazar [D-CO]
• Sen. Ron Wyden [D-OR]

I'm afraid I cannot say what nameless aide put the language into HR 4986. Such is the reality of modern stealth legislation.

We must continue to fight the good fight, just as the three or four dozen senators who voted today to support civil liberties did, just as the sponsors of S 513 did, and at times quietly as the author of HR 4986 § 1068.

As ever, don't believe me.
Research for yourself.
Be a free voice.
Cry for Freedom