Specter's Specter FISA Bill

I wrote yesterday that Arlen Specter's bill introduced yesterday appeared to do absolutely nothing, now we have an observation from Marty Lederman that it does in fact do something. Quite a lot actually, Lederman argues that Specter's bill actually dismantles FISA. Quite a different interpretation than what was presented by the Washington Post yesterday. I'll let Lederman take it for a while now.

As I read the draft bill, however, this is wrong. It's not simply a a reenactment of the "FISA framework" -- instead, it's a wholescale dismantling of that framework, a substantive amendment to FISA that would vastly increase the surveillance authority of the President. It would give the Executive branch everything it has always wanted, and much more: The punishment for having broken the law with impunity would be a wholesale repeal of the law that has governed electronic surveillance for almost 30 years (and not only with respect to Al Qaeda or terrorism). In one fell swoop, the Specter legislation would undo the detailed regulatory scheme that both political branches have so carefully calibrated over more than a quarter-century.
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Under FISA, in order for the federal government to engage in electronic surveillance targeted at someone here in the U.S. -- i.e., at phone calls and e-mails going out of the U.S. -- there must be probable cause that the person targeted is a foreign power or an agent of a foreign power. See 50 U.S.C. 1805(a)(3). The Specter bill would go much, much further. Under that bill, it would not be necessary for the NSA to show that either party to an intercepted phone call or e-mail has anything to do with Al Qaeda or any other terrorist organization. It would not even be necessary for the government to show probable cause -- or reason to believe, or any evidence -- that etiher party to the call or e-mail is a foreign power, an agent of a foreign power, or even associated with a foreign power.

Instead, the bill would permit domestic electronic surveillance targeted at U.S. persons merely upon a showing of "probable cause" that the surveillance program as a whole -- not even the particular targeted surveillance -- will intercept communications of anyone who has "had communication" with a foreign power or agent of a foreign power, as long as the government is seeking to monitor or detect that foreign power (or agent)! (See the new section 704: The standard for the FISA Court's review of the application is whether "there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application.")

So, if Lederman is correct (and he makes a disclaimer that this is an initial impression and perhaps he's missing something) then the Specter bill actually prevents the President from ever having to show probable cause for a wiretap. If he can demonstrate that there is probable cause for the program as a whole then the NSA may conduct these wiretaps. I would read that to essentially declare that the President can moniter any conversation he likes if he can demonstrate that somewhere at some time there is or was a threat that wiretapping could or did stop. Assuming that Lederman is right, the Specter bill then essentially allows the President to data mine at will, as long as he can justify the program itself to the FISA Court.

Another issue unrelated to the bill comes up here. How could the Washington Post have done this awful a job in reporting on the Specter bill? Did the author not bother to wonder why Specter would propose a bill that does absolutely nothing that FISA doesn't do already? How could the Washington Post have printed an article that makes the reader think that the bill does the exact opposite of what it actually does? Come on Washington Post writers and editors, grow a brain.

Specter Proposes Bill to do Nothing

Sen. Arlen Specter, chair of the Judiciary committee has proposed a bill to require "The federal government...to obtain permission from a secret court to continue a controversial form of surveillance, which the National Security Agency now conducts without warrants." Sounds like FISA. There's a reason for that, it is. Given what can be determined from this article, Specter's bill does absolutely nothing, because it is entirely contained within the status-quo. Maybe Specter should introduce a bill to criminalize marijuana now as long as he's introducing bills that offer no change to the present situation.

William F. Buckley Admits Defeat in Iraq

Yes, Editor of the National Review William F. Buckley has admitted that the United States cannot win in Iraq.

One can't doubt that the American objective in Iraq has failed. The same edition of the paper quotes a fellow of the American Enterprise Institute. Mr. Reuel Marc Gerecht backed the American intervention. He now speaks of the bombing of the especially sacred Shiite mosque in Samara and what that has precipitated in the way of revenge. He concludes that “The bombing has completely demolished” what was being attempted — to bring Sunnis into the defense and interior ministries.

Our mission has failed because Iraqi animosities have proved uncontainable by an invading army of 130,000 Americans. The great human reserves that call for civil life haven't proved strong enough. No doubt they are latently there, but they have not been able to contend against the ice men who move about in the shadows with bombs and grenades and pistols.

Unfortunately we have a President backed by a whole lineup of neocons who can't accept this reality, so we continue to pursue an unatainable policy. If the Administration could accept the obvious reality of the situation in Iraq we could move forward to find a reasonable way to cut our losses and get our troops out.

TIA Returns

Remember Total Information Awareness? Well, it's back. When Congress refused to fund it the Bush Administration folded the program into the NSA. This Administrations disdain for the Congress, the Constitution, and the privacy of the American people is unbelievable. Unfortunately Bush has now stacked the Supreme Court with Executive Power Justices and Congress doesn't give a damn.

So Much to Blog So Little Time

It's not like there's nothing to blog about, I just can't find the time or energy to do it.

Republicans Admit Domestic Spying Program is Illegal

The Associated Press runs a story about a "deal" struck between Senate Intelligence Committee Chairman Pat Roberts and the White House.

Without offering specifics, Roberts said the agreement with the White House provides "a fix" to the Foreign Intelligence Surveillance Act and offers more briefings to the Senate Intelligence Committee.

The deal comes as the committee was set to have a meeting Thursday about whether to open an investigation into the hotly disputed program. Roberts indicated the deal may eliminate the need for such an inquiry. Democrats have been demanding an investigation but some Republicans don't want to tangle the panel in a testy election-year probe.

I feel farely confident that whatever this "deal" is, its no good. Anything that allows the executive to bypass Court approval for searches can't be good, and that's the only solution the White House would settle for. DeWine is also suggesting changes to the law.

Earlier in the day, White House spokesman Scott McClellan hinted at a "good discussion going on" with lawmakers and praised in particular "some good ideas" presented by Sen. Mike DeWine (news, bio, voting record). The Ohio Republican has suggested the FISA law be changed to accommodate the NSA program.

Republicans suggesting changes to the FISA law in order to permit Bush's program? By suggesting that the law needs to be changed to allow for a program that Republicans claim is absolutely necessary to national security, they admit that the program is illegal. So, seeing how we are all now in agreement that the President defied US law in order to engage in a domestic wiretapping program we can move forward to the proper place right? If we all agree that this is illegal there are only two arguments that one can make. One, that the President has the authority to do whatever the hell he wants and the law doesn't matter. And two, that the President violated the law and should be impeached. If we choose the first then we may as well abolish the Constitution to establish a monarchy. If Republicans are not willing to take this step then the only other option is to join Representative Conyers to impeach the President. Since that won't happen, they remain hypocrates who support dictatorship.

Tucker Carlson Makes Shit Up

I couldn't bear to stick arround and watch the show, but MSNBCs Tucker Carlson stated tonight that "the liberal blogs are running with a story that Cheney is covering up for an affair." Now, Tucker shields himself by attaching the blind quote, obviously we don't know what blogs he's looking at. But let's do a quickie survey of the major blogs that I tend to look at along my sidebar. I will look only at the significant partison blogs, excluding SCOTUSBlog, the Poetry Scorecard, Blue Oregon, The Emergingg Democratic Majority, and Juan Cole. If for no better reason then that I'm sure they aren't even talking about the issue.
Alternet-Discussion of "A beer or two and a gun"
Atrios-Discusses how well Cheney knew Mr. Wittington, and addresses right wing claims that the media is at fault for the incident.
DailyKos-A lot on drunkenness
LiberalOasis-Absolutely Nothing on the Cheney shooting
MyDD-Nothing on the subject
My Very Brain-Nothing but the bare facts.
Talking Points Memo-Discussion of the police investigation.
Think Progress-News coverage of the question of Cheney possibly being drunk.

So, after actually examining major blogs, one can only conclude that either Tucker was just flatly making shit up, or he decided that this was his story and went way out of his way to find a liberal blog to back up his case. Since there are so many liberal blogs out there, I'm sure that somebody did in fact say that, but it aint anyone who very many people read. Congratulations Tucker, you can conduct a google blog search. Very good, you pass the test.

The NLRB Fails to Adequately Protect Workers Even When It Sides With Them

Today's New York Times runs a very important and telling story about the State of labor relations. The article documents abuses at non-union meat packing plant in North Carolina where the company has been found to have illegally manipulated the vote to prevent a union. The most obvious and immediate problem is speed:

In 1997, the United Food and Commercial Workers Union lost a unionization election at the sprawling plant, built in this rural town 75 miles south of Raleigh. But it was not until 2004 that the National Labor Relations Board upheld an administrative law judge's decision that threw out the election results.

The labor board found that the Smithfield Packing Company not only had prevented a fair election by illegally intimidating, firing, threatening and spying on workers but also had a union supporter beaten up the night of the vote count.

Seven years to finaly rule that the company violated the workers rights to a fair vote for a union. Seven years that the company was allowed to continue abusing its workers and for which the workers had no recourse of a union. Even after the ruling, organizers fear that the company would continue to act in the same way, intimidating workers so that they still would be unable to get a fair vote. If a new vote were held today and the company engaged in the same tactics and the vote had the same result, it would take another seven years to get the same ruling from the NLRB. Another 7 years for which employees would have no way to defend themselves against company abuses. I talk about company abuses, because they are many at the Smithfield Packing Company, and many of those abuses would be solved if the workers were allowed a union, something that the company is hell bent on preventing.

Among the nearly 5,500 workers at the Smithfield plant who kill the hogs and cut them into hams, ribs and pork chops, there is a steady stream of complaints about bullying managers, the line speed and the many injuries to hands, arms and shoulders.

"A union would help reduce all the injuries — people are getting hurt left and right," said Edward Morrison, 42, an Army veteran who quit his job on the kill floor in October after tearing his knee while straining to push a rack that had five hogs hanging from it. "A union would also give the workers a say-so."
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One of those the union has enlisted is the Rev. Markel Hutchins, associate pastor at Philadelphia Baptist Church in Atlanta. "I became involved with this not so much as a union issue, but as a civil and human rights issue," said Mr. Hutchins, who has spoken at churches and colleges to rally support for the Smithfield workers. "What's happening there is eerily reminiscent of the days of Jim Crow in terms of gross mistreatment."
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"Given the history of Smithfield, if you try to have a free and fair election, it ain't going to work," said Gene Bruskin, the director of the unionization drive. "What Smithfield needs to hear is the message that workers have a right to make a decision about whether they want a union without being beaten, terrorized, intimidated and threatened."
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Mr. Hostetter said Smithfield maintained a good relationship with unions at its unionized plants — 21,800 of its 51,290 workers have union representation. But union officials are quick to point out that the workers at many of those [unionized] plants earn on average 40 percent more than the Tar Heel workers, who usually earn $8.50 to $11.50 an hour.
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But Joseph T. Hansen, president of the United Food and Commercial Workers, said: "We could have an election there every year, but it won't be fair because the workers will be terrorized. Why should we keep beating our head against the wall?"

Mr. Hansen said the lower pay at the Tar Heel plant was putting downward pressure on pay throughout the industry. "The way people are treated there is outrageous," he added. "The people there are treated as if they're in the Sudan and not in the United States."
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The labor board and the administrative law judge ruled that Smithfield had repeatedly broken the law in pressing workers to vote against the union.

According to those rulings, Smithfield managers illegally fired four workers for supporting the union and threatened to freeze wages, discharge employees and close the plant if the workers unionized. The two rulings also found that Smithfield had improperly intimidated union supporters by having its small police force mill outside the polling station at the plant.

Lorena Ramos, 29, an immigrant from Honduras, said Smithfield's managers and consultants often told the workers that the union only wanted employees' dues money and would cause strikes that could lead to violence, job losses and even closing the plant.

Her right arm was badly injured when it got caught in a conveyer belt as she was scooping dry ice into packing boxes. She and her husband were outspoken union supporters, and they said they were shocked and embarrassed when the plant's internal police force arrested them, handcuffed them and paraded them through the plant, accusing them of setting a fire in one of the plant's cafeterias. The county's district attorney dropped the charges for lack of evidence.

Ms. Ramos quit the plant after the arrest, too scared to return. The union hired her as an organizer because of her popularity, courage and communications skills.

"Right now if the workers want something to change at the plant, the plant's not going to listen to them," she said. "If the workers have a union, then they will be listened to."
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For workers, line speed is one of the biggest issues. On each processing line on the kill floor, a hog passes about every three and a half seconds, translating into about 1,000 hogs an hour, 8,000 a shift. Many workers complain that injuries are caused by the line speed and by having to do the same task thousands of times daily. Workers sometimes even stab one another or themselves by mistake.

Abusive company that won't allow a fair vote can get away with it, because even if they lose at the NLRB they get to continue to abuse workers for the next 7 years. The process is far too slow to guarantee any justice for workers. We need reform at the NLRB speeding up the process and imposing harsher punishments for companies that intimidate workers out of unionizing, this 7 year process ending in nothing worse than a slap on the wrist does little to guarantee the protection of workers rights. Particularly in a climate where the NLRB is stacked with people friendly to big business interests.

I always knew Cheney had anger problems

Cheney shot a guy. It is evidently difficult for Cheney to tell the difference between a bird and a human. Someone needs to work with him on that distinction, it might help when hunting.

The Stupidity of Health Savings Accounts

Fellow Oregon blogger The Big Forehead with a very good short discussion of why the health savings accounts that Republicans support are a bad idea.

Consuming healthcare ain't buying Coca Cola; it's not choosing between buying a Kia instead of a Mercedes. Nobody wants to approach an insurance company with an expensive, pre-existing condition. You can't, as a consumer, opt for operable versus non-operable cancer. I've never met anyone who woke up in the morning and decided to break their leg. I'm guessing the premiums will be hard enough for most folks on the bottom rung and the idea that they're going to sock even more cash into their HSA would be funny if it weren't so insulting.

Basically, healthcare isn't a normal market. That entire argument is maddeningly silly and dishonest. This is about getting employers out of the insurance game. If you think that's a swell idea, great. That's your perogative. But do yourself a favor and excise the "smart consumers" meme from your talking points.

One minor quibble I have here, employers should be taken out of the insurance game, it would be better for everybody if employers were taken out of the insurance game by instituting a single payer plan in which everyone is guaranteed health care insured by the United States Government. But the argument about health care not being a normal market in which one can choose which products they are going to buy is made very effectively. PS: Emphasis mine on the quote

You call that an education policy?

The Bush Administration: Home to absurd policy initiatives that serve no practical purpose. Education seems to occupy the same approach the public policy that is present in nearly everything pursued by this Administration. In short, there is no policy. The New York Times today lead with this gem on page 1 collumn 1.

My first reaction was, in a sentence, "what the hell?" This makes absolutely no sense. I have always stood firmly opposed to standardized testing, but in the High School level some of the arguments make some degree of sense. The simple fact of the matter is that a percentage of High School teachers don't know what the hell they're talking about. They are a small percentage, but some High School teachers come in with little knowledge about the subjects that they're teaching and can't give the students any useful information. Furthermore, all American children attend High School, it is our bedrock education system and represents the bare minimum of what we expect our children to know. With that in mind there is some role for tracking student performance in High School, though again, I oppose the policy and it is a huge burden on schools that detracts from the actual learning process.

Colleges however, are totally different. First of all, colleges have some control over the students they are admitting. Secondly the presence of majors separates people into needing a knowledge base of some things but not others. Third all the professors in College are experts in their field, they have post graduate degrees in history or biology or political science, whatever it may be.

It is clear what a standardized testing regime would show us. The schools that test well would be the ones with higher admissions standards, the ones that do poorly would be the ones with lower admissions standards. For as is a problem with all testing regimes schools can only do what they can with the students they have. But Colleges have more direct control over what students they have. So the obvious result in a standardized test among colleges would be that schools everywhere would increase their admissions standards. It shouldn't be hard to see how this opposes the value of an educated public, because more people would not attend college. The article cites one cause for concern in American colleges as being a high dropout rate. But the cause of this is obvious and certainly isn't going to be helped by standardized testing. The cause of high drop out rates is twofold, the high cost of tuition and the difficulty of the coursework. Students who don't feel like they can keep up are likely to drop out. What this has to do with standardized testing is beyond me.

Quite frankly, this is one of the most idiotic ideas I've ever heard. So what the hell is the Bush Administration doing even seriously looking at it? Destroying public education. They know that in both High School and College the test scores will show that private schools do better in public schools. The cause of this is of course admissions standards in college, public schools often have softer admissions standards than private schools. In High School admissions is key to the answer once again. Private schools can reject anybody they want and control their student body to prevent people from attending who will drag down the test scores. Public schools on the other hand can't control their student body at all. The ultimate goal of standardized testing? Privatization of education. That is the only explanation which does not lead one to conclude that standardized testing (particularly in college) is bad public policy. For if the goal is privatization of the education system then it must first be demonstrated that private schools are inherently superior to public schools, and that public schools are incapable of supplying a good public education. This way the privatizers can demonstrate how much better the private secter supplies education than the public sector. Once that is done they can privatize education and make education something that only obtainable for the children of elites.

They wouldn't be Democrats if they weren't missing opportunities

The New York Times runs a front page story today that tells the rotten state of the Democratic Party like it is. After failing to get more than a measly 25 votes for an Alito filibuster, Senate Democrats have forsaken a duty to the American people to do everything they can to stop this radical nominee. Why? Because they were unable to effectively make their case and throw public support against Alito who will likely be even more conservative than Antonin Scalia. What kind of immediate impact is this likely to have? For starters Tennessee v. Lane represented one of the ways in which O'Connor has defined the Supreme Court in recent years, the already conservative path of the Supreme Court's view on federalism is now going to make a radical shift to the right tossing out a number of Federal laws. Secondly, there are the affirmative action cases where O'Connor once again comprised the deciding vote, once the Court has an opportunity all considerations of race in college admissions are probably going to be tossed out. I won't torture you going through a long list of ways that the Alito confirmation is going to radically change the Supreme Court, and will only go through one more example. Why did Bush ask for the line item veto in his state of the Union speech? The Supreme Court struck down the law in 1998 6-3, but Bush asked for it, he has appointed two executive power friendly justices to the Supreme Court, but if everyone votes the same it would still be struck down 5-4, Alito replaces O'Connor who voted in favor of keeping the line item veto, so that's a wash, but Roberts replaces Rehnquist who voted against it. Bush must believe that Thomas might switch over and that there is a chance that the Supreme Court might uphold the line item veto or he would not have asked for it in the State of the Union address.

But with all these radical changes Democrats were incapable of making their case to the public and could not come near the 40 votes needed for a filibuster. The underlying problem with the Democratic Party today is their total inability to make a case, no matter how strong that case is. This is further evidenced by the public support for Bush's illegal domestic spying program. The New York Times article is absolutely right, if the Democrats do not change the way they approach these discussions they will not have the gains that they should have in 2006.

Long Time No Post

It's been a while since I've posted anything here, I was in Mexico for a month, then I just couldn't find the energy to post anything. I suppose if I'm going to keep this going I should probably start posting again, so here I go, next post kicks off 2006 for me.