Two Rulings?

by emptywheel

No wonder BushCo wanted oversight of FISA totally out of the hands of the FISC. If I'm reading this WaPo article correctly, there were actually two rulings that went against the Administration--one in March, and one in May.

But in a secret ruling in March, a judge on a special court empowered to review the government's electronic snooping challenged for the first time the government's ability to collect data from such wires even when they came from foreign terrorist targets. In May, a judge on the same court went further, telling the administration flatly that the law's wording required the government to get a warrant whenever a fixed wire is involved.

Indeed, there's a sense that a lot of the Administration response came out of frustration with the Court:

The judges were sympathetic but said they believed that the law was clear. "They said, 'We don't make legislation, we interpret the law,' " the senior administration official said.

The rulings -- which were not disclosed publicly until the congressional debate this month -- represented an unusual rift between the court and the U.S. intelligence community. They led top intelligence officials to conclude, a senior official said, that "you can't tell what this court is going to do" and helped provoke the White House to insist that Congress essentially strip the court of any jurisdiction over U.S. surveillance of communications between foreigners.

That's kind of predictable. As we've seen, when the law rules against Republicans, they tend to dismiss the law--and the Courts judging it.

The article also names names about whom Cheney told, this time, to fuck themselves: Senators Rockefeller and Levin.

"I want to move forward," [Rockefeller] said. But Democratic leaders wanted something in return: the release of long-sought administration documents describing the controversial warrantless wiretapping program Bush had authorized in the weeks after the Sept. 11, 2001, terrorist attacks.

The administration declined to release the documents, which include Bush's presidential order allowing the wiretaps, as well as the administration's legal opinions justifying the action. Administration officials described a particular showdown with key Democratic leaders -- including Rockefeller and Carl M. Levin (Mich.), chairman of the Senate Armed Services Committee, in which Democrats proposed a trade of sorts.

While the exchange was not a quid pro quo, the senators essentially said, "You give us the documents we want, and we'll give you the legislation," according to an administration official present, who said the response was "no."

Time to renew my search for a new SSCI Chair, I suppose. Because we sure could use a few people who won't take "no" for an answer.

Comments

[bmaz]

Heh. The FISA imbroglio really is the gift that keeps on giving. It just keeps getting better and better; in a strictly negative sort of way of course. Where do you even start? Recognition of the consistency of Bush and the Republican's desire for "strict construction" from Federal judges and their rulings? The admirable performance under pressure by the Democratic leadership? It is beyond sick. It is bad enough that Rockefeller and Levin would contemplate trading the essence of the Constitution and fundamental rights of the citizenry for documentation they were long ago entitled to, but were to weak and lame to obtain. But NO, they didn't even walk away with that pitiful outcome; all they got was humiliation. Hey, here is a thought for our Democratic geniuses, maybe the reason the FISC kept ruling against the Administration is because the activities were freaking illegal, unconstitutional and just plain wrong. Mind boggling is not a sufficient description for this.

[clem]

This story becomes more and more distressing. It's bad that Rockefeller and Levin lost the showdown, but it's also bad that they two were bargaining on my behalf, without my knowing about it.

The senators and representatives who voted for the administration's new bill whine about the pressure, but now we learn that at least 2 judges, all by themselves, found the strength to say "no" and to make it stick.

Democracy appears to be broken.

[turtlens]

John Stuart Mill - Inaugural Address Delivered to the University of St. Andrews

Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing. He is not a good man who, without a protest, allows wrong to be committed in his name, and with the means which he helps to supply, because he will not trouble himself to use his mind on the subject. It depends on the habit of attending to and looking into public transactions, and on the degree of information and solid judgment respecting them that exists in the community, whether the conduct of the nation as a nation, both within itself and towards others, shall be selfish, corrupt, and tyrannical, or rational and enlightened, just and noble.

[bmaz]

A most excellent and appropriate quote from Mill.

[joejoejoe]

Things Congress thinks it can do but CAN NOT dp because it is fucking stupid.

1) have good faith negotiations with the White House ever
2) strike a decent compromise, even when giving the White House more than half-a-loaf (Fourth Branch would rather gnaw off his own cloven hoof than give you one fucking crumb)
3) convince one soul in the White House of the rightness of your idea, they don't listen to you, they think you are a fucking joke, and yet you still plead your case with them in earnest dulcet tones like clueless wankers

So what CAN Congress do?

a) like doctors, first do no harm
b) block stupid shit
c) let bad laws expire
d) cut funding
e) pass strong popular legislation so Bush can veto it (nothing worth a damn will be signed, we can make it another 15 months without whatever compromise pony bill you think needs passing, pass the good shit)

I find it hard to believe that Carl Levin and Jay Rockefeller could have been alive these past 7 years and not see all of the above as obvious. No more FISA caves please. Bush lives to give Congress the proverbial atomic wedgie. So what do you do? Bend over and ask him what he thinks of your new underwear. WAKETHEFUCKUP!!!!

[selise]

did levin get punked by his own leadership?

from Katie Jacob:

When I called Senator Levin’s office on Fri. am to ask him to oppose FISA gutting legislation, the guy who answered the phone at Levin’s office told me that the senate would not be voting on any FISA legislation before vacation. I called back today to ask why he said that in light of what took place, and he said that Levin believed that they wouldn’t consider it as of Fri. am but that they hadn’t known that it would be “forced upon them” and that the President would say they could not leave until they resolved FISA. I said why didn’t they just stay but not acceed to the Repugs, he said that it was “up to the majority leader” and that Levin didn’t vote that way.

[bmaz]

joejoejoe - Absolutely.

Selise - I dunno. Maybe, but since Levin was, along with Rockefeller, the interface on the negotiations, you would think he would be right there with Reid on this decision. If not, why isn't there an effort to remove Reid underway? Should be anyway in my mind because Reid's actions are flat inexcusable.

[selise]

bmaz -

everyone seems to be blaming someone else. no one was responsible.

sure makes figuring what happened (and who's responsible) difficult.

[bmaz]

Same BS the worthless Bushies/Republicans pull. Far as I am concerned, and I will probably calm down sooner or later-but not yet, anybody who voted for the FISA legislation, Dem or Rep, is on the same shitlist. Having the majority and the committee chairs and all is nice, but if they can't even muster the gumption to maintain the wafer thin protection of FISA court supervision for the 4th Amendment, what real good is the majority/committee power? I honestly can't understand how the Dem leadership could even consider this capitulation, much less do it.

[prostratedragon]

Guardians of democracy? I hardly can believe they're experienced and worldly adults.

Well, off to read about something really inspiring, like maybe Jim Wright and the S&L scandal.

[danps]

We need to get rid of anyone who’s been part of trashing the Constitution. Party doesn’t matter.

[Katie Jensen]

I think the american people cannot come to acceptance, true radical acceptance of these behaviors because it is like looking into the mirror and seeing your own flaws projected on the big screen. active passivity, greed, co-dependency. We as a nation are in denial about who we are and what we have become. It has been coming long before Bush.

While I was so angry at Nader during his last run, I see now, what he was trying to tell us. The system is broken, it was broken back then.

He kept repeating that the dems were no better than the republicans, that the corporate money was such a huge problem and that it had infiltrated our democracy. I still think dems might have been better than this......but now I really wonder.

The rule of law, our constitution cannot protect us from the sickness that has overtaken us. What can?

[P J Evans]

everyone seems to be blaming someone else. no one was responsible.

sure makes figuring what happened (and who's responsible) difficult.

The story of this administration so far. I'd have thought it hadn't spread to Congress, but obviously they have it too. Time for quarantine?

[selise]

pj evans - i think the disease that congress has is different from the one the administration suffers from.

members of the bush/cheney adminstration tell us "we're incompetent, not mendacious" while members of congess tell us "we're cowards, not mendacious"

[Agincour]

Am I the only one who often feels, in looking back at human history, that no matter what we do or think, especially when it requires someone else (our representatives)to do what's both morally and legally right, that there's no hope for it ever happening?

I get so depressed about this sometimes.

Of course I understand the ennobling power of knowing what is right and fighting for it, but when there's no possibility of actually changing anything dramatically, what good does it do us?

Other than make us feel better about ourselves--is there a point? Don't get me wrong, no one wants this more than I do, but it's all just so damned disheartening.

[turtlens]

selise - members of the bush/cheney adminstration tell us "we're incompetent, not mendacious"

shouldn't that read

members of the bush/cheney adminstration tell us "we're incompetent, and mendacious, but we were elected, so we have the power, if you are too weak to hold us to account"

[masaccio]

OT.

A couple of days ago, EW wrote about the subprime mess. There is an explanation of sorts in today's NYT, by the excellent Floyd Norris and Eric Dash. Link.

At the heart of the contagion problem is the combination of complexity and leverage. The securities that financed the rapid expansion of mortgage lending were hard to understand, and some of those who owned them had borrowed so much that even a small drop in value put pressure on them to raise cash.

“You find surprising linkages that you never would have expected,” said Richard Bookstaber, a former hedge fund manager and author of a new book, “A Demon of Our Own Design: Markets, Hedge Funds and the Perils of Financial Innovation.”

“What matters is who owns what, who is under pressure to sell, and what else do they own,” he said. People with mortgage securities found they could not sell them, and so they sold other things. “If you can’t sell what you want to sell,” he said, “you sell what you can sell.”

This idea is amplified in the article, and repeated in another by the very excellent Gretchen Morgenson. (could be in Times Select).

In a research report from Lehman Brothers last week, Matthew S. Rothman described the phenomenon. Fund managers experiencing losses in their fixed-income portfolios who were unable to sell their positions then tried to unwind the trades they could sell — that is, stocks. They cashed in the shares they had purchased and bought back the ones they had sold short.

The big problem is repeated in both articles. All markets are intertwined in a tight bundle, and no one can see what will happen when one piece fails, no one can see the interactions which will cause havoc in apparently unrelated types of securities.

This explanation makes sense to me. It suggests that the problems are endemic to the entire financial system, but more like a surface infection that will be cleaned out when the losses are taken. It is tempting to think that the losses will fall on the grotesquely wealthy, but regrettably that is not so. A large number of pension funds have money at stake in these ventures as well. I would not be surprised to learn that TIAA-CREF, CalPERS and other pension funds, the Yale, Tesas and Harvard endowments, and many other groups on which a lot of us depend, are losers. Hopefully these investments are a small part of the total funds, and this won't turn out to be an Orange County debacle.

In the end, of course, we can hope that when the infection dies out, our investments in fundamentally sound stocks and bonds will not, in the long run, be damaged. In the short haul, there is a fair amount of misery.

Enough economics. Stop me before this bout of keyboarditis does me in.

[masaccio]

Tesas? Texas. Preview is my friend.

[readerOfTeaLeaves]

Joejoejoe, let's just hope that Congress isn't wearing a thong 8-0

Back in the 1980s, Congress handed its ass on a platter with respect to oversight during Reagan and Bush41. Otherwise, Iran-Contra could never have occurred.

Color me stupid, but it's a safe guess that the Chinese, Russians, Saudis, Israelis, Pakistanis, Indians, French, Brits, and heaven-only-knows-who-else have intel. Assuming my hunch is correct, Congress may be operating with less information than the French and Pakistani's. Good to know.

It appears that Dick Cheney and George W Bush (CEO of Armbusto and Harken bailouts, but I digress) are happy to let Congress stumble around blind, whereas our enemies and allies can function because they actually have reliable info. Whose interests does that serve? Not America's. So whose?