The FDL family has had a profound positive impact on the federal scene on issues surrounding the rule of law. We are all hurt when justice is politicized. As I pointed out in Deceit In The Desert, the problem with politicization at the state and local level in many places is every bit as bad, and the effects every bit as ruinous.

In Maricopa County Arizona a battle to turn the tide and restore the fair and equal rule of law is in full tilt in the last two weeks leading up to the election. In the video, governor Janet Napolitano, former Arizona Attorney General and United States Attorney for Arizona, describes the critical significance of the office of county attorney, and how Tim Nelson will repair it. Let me tell you about the guy that broke it and who must be ejected from office.

Andrew Thomas has been the theocratic right wing tool in office as the Maricopa County Attorney since 2004. Attorney Gerald Richard, who represented the Phoenix Police Department and law enforcement interests for over 19 years, had this to say about Thomas:

As County Attorney, he has diverted resources away from prosecuting violent criminals to persecuting immigrants charged with “smuggling themselves.” His wiretapping of the Serial Shooter suspects without a court order could jeopardize the expected convictions in the case. Thomas has cut training for his staff attorneys by 90-percent, creating the need to spend 11-million dollars hiring outside law firms (that coincidentally helped pay for his election campaign in 2004). He has spent more than two-million dollars on billboards, booklets and TV ads that primarily promote himself. And he has signed off on the arrest of newspaper publishers and invading the privacy of their readers.

Senior trial lawyers and division leaders in the County Attorney’s Office, many of them there for decades, have been forced out or marginalized. Critical decisions are made on the basis of ideology, theology and public relations value instead of the law. Andrew Thomas has brazenly used his office to attack and persecute personal enemies. When Thomas went after local newspaper publishers that disagreed with him, he not only attacked them, he also subpoenaed and tried to attack their readers by using a grand jury to attach their personal and private internet profiles and usage.

Oh, did I mention the theocratic element of Andrew Thomas? Thomas is an aggressive and dogmatic right to life maniac. His hero is Clarence Thomas, on whom he has authored the most slavishly prosed biography you have ever encountered. Andrew Thomas is an up and coming darling of the NRO and Katherine Jean Lopez. Just how far will Thomas go in proselytizing and forcing his religion on others? Very far, and he will convert public money and resources designated for law enforcement and prosecution to do it.

No, the office financed the [religious] donation with RICO funds — money seized from illegal enterprises and granted to law enforcement for four purposes: racketeering investigations, gang prevention, substance abuse programs, and substance abuse education.
…
[A review of] RICO fund expenditures by Thomas’ office during his tenure and found $168,000 in earmarks for church-based programs and Christian ministries — many of them blatantly focused on converting people to Christ.
…
And the donations to Christian churches aren’t the only RICO funds Thomas is using to win votes. He’s also used RICO bucks in an endless campaign to increase his name recognition.

Read the whole article; it is an amazing report on as blatant and objectionable conversion of the justice powers of the state to proselytizing for a pet religion as you will ever encounter.

As related above, Thomas relentlessly attacks anybody who disagrees with him. Even judges. His attacks on the Maricopa County judiciary that try to adhere to the law have become an ongoing scandal in Arizona, resulting in several of them retiring and seeking state bar action against Thomas. Thomas has even sought, in conjunction with the NRO, to break up the Ninth Circuit, a federal court he doesn’t even practice in front of, because they are "too liberal". Thomas is also a favorite of right wing crusader David Horowitz and his FrontPage Magazine. Thomas is an excessively ambitious political climber that is being groomed by national right wing extremists. (Did I mention that one of Thomas’ other life heroes is Dick Cheney?)

As described in Deceit In The Desert, there is a wonderfully viable alternative to Thomas on the ballot, Democrat Tim Nelson. It is a neck and neck race with the critical two weeks until the election to go. If Nelson can defeat Thomas, it will not only make a world of positive difference in the justice system in the fourth largest county in America, it will put a serious dent in the ability of Thomas to grow and become a national problem like he is being groomed to be.

Tim Nelson’s race to defeat Andrew Thomas is so critical, both for the present and the future, that Thomas’ predecessor as Maricopa County Attorney, Republican Rick Romley, as well as former Republican Attorney General Grant Woods, have both endorsed Tim Nelson. So has wrongfully purged former Republican US Attorney Paul Charlton.

With two weeks left, Nelson is in a dead heat with Thomas, but Thomas has the benefit of massive advertising advantage both from his office propaganda efforts described above, and, more importantly, from independent right wing and Republican groups, both in-state and national, supporting him. Barack Obama has shown the power of the many through small donations to a candidate. Your assistance, no matter what the size, can help Tim Nelson be competitive in advertising down the stretch.

The effort is critical even if you don’t live anywhere near Phoenix, Maricopa County or the State of Arizona.

Help make a difference for Nelson over Thomas.

Thomas and Sheriff Joke

Hello from the state that has brought you John McCain. Sorry about that. You would think that would be enough shame for the Arizona Republican Party. Sadly, they have much more to offer. Reprehensible does not start to describe the efforts of the Arizona GOP and their poster boy of hate, Maricopa County Attorney Andrew Thomas. You may remember Thomas, he was behind the blatantly unconstitutional arrest and attempted prosecution of the two publishers of the local independent investigative weekly newspaper, The New Times.

Andrew Thomas is a young, extreme right wing, fundamentalist nightmare, and he, along with his best friend Joe Arpaio, are the law in Maricopa County, the home of Phoenix and the fourth most populated county in the United States. Here is the latest morally repugnant bile out of Andrew Thomas and the Arizona GOP:

An official with the Arizona Republican Party says he pulled an innuendo-heavy ad linking Tim Nelson, the Democratic candidate for county attorney, to defense lawyers in child- pornography and child-murder cases.
…
The ad refers to suggestions made in news releases, news conferences and interviews generated by Rose’s agency.

In mid-September, one of Rose’s associates issued a news release saying that a lawyer who defends pornographers contributed to Nelson’s campaign. Nelson donated the $390 in question to a charity for parents of murdered children.

"It’s sickening that they have sunk to a new low," Nelson said.

Nelson characterized Thomas’ attacks as "personal, mean and with false innuendo."
…
The Nelson ad opens with images of children riding tricycles and eating dinner at a family table.

"They deserve a safe neighborhood, a secure home," a woman’s voice says. "They deserve the innocence of childhood and all of its wonder. And they deserve to be protected."

Then there’s a drum roll and a frowning photo of Tim Nelson flashes on screen.

"But can they count on liberal ACLU lawyer Tim Nelson?" the woman continues. "He took money from a child pornographer and from lawyers who defend child murderers. Liberal Tim Nelson isn’t just wrong. He’s dangerous."

What are Tim Nelson’s crimes? That fully upstanding citizens, that happen to be employed as criminal defense attorneys, contributed to his campaign. Oh, yes, and that over ten years ago, the firm that Nelson worked at was appointed by the court to assist an indigent defendant with a death penalty appeal. Not Nelson personally understand you, just his firm. Wonderful. The United States Constitution guarantees criminal defendants the right to counsel. But when big civil law firms, like the one Nelson worked at, donate their time in the interest of upholding the Constitution and the rule of law, everybody affiliated with them are tarred by Andrew Thomas and the Arizona GOP as dangerous criminal aider and abetters themselves. This is beyond despicable.

And what does Andrew Thomas himself have to say about this? Is he apologetic and embarrassed? Of course not. While admitting that the ad was slightly exaggerated, Thomas dives right back into the cesspool.

"The fact is: My opponent has prostituted himself to lawyers for Valley criminals," Thomas said. "I would hope the party, if they choose to help my campaign, will rework the ad to stick to the facts as laid out in our campaign material."

We talk so much about the national elections here, and with good reason, the Presidential and Congressional elections are of critical significance with our nation teetering on the brink of self immolation. But the simple fact of the matter is that the vast majority of real governance occurs at the state and local level. We must not forget that; those elections count every bit as much as the national ones in a lot of ways. More and better Democrats are direly needed all the way across the board.

In Maricopa County, a very critical spot in the rapidly growing and significant Southwest, arguably the most significant spot, there is a chance to make a dent. While Sheriff Joe Arpaio probably cannot be defeated, Andrew Thomas sure can. It is a neck and neck race, and Tim Nelson is a very solid candidate. Nelson is very close to Janet Napolitano, who is remarkably popular in Arizona for a Democrat, and he has run an honorable race so far. But Thomas is far better financed, and is benefitting from outside GOP money and groups that are active here because of McCain.

It is a miracle that Nelson is dead even with Thomas. Thomas won the office in 2004 by a huge margin. Tim Nelson needs help to finish off the deal. I will be discussing this race again in the coming days. In the meantime, however, if you live in Arizona, or have an interest in seeing an extremely critical race won by the good guy for once, help Tim Nelson out by donating some time or money. We always strive to make a difference, we have a chance here.

The opinion by the DC Circuit Court of Appeals in the Harriet Miers and Josh Bolten subpoena matter has just been issued. The court has granted the stay requested by the Bush Administration; which, by all appearances, will effectively end the litigation as the subpoenas presumptively expire on January 3, 2009 when the term of the current 110th Congress expires. The opinion is short, easily understandable and should be read by one and all to get a first hand look at truly mendacious appellate judicial practice.

The present dispute is of potentially great significance for the balance of power between the Legislative and Executive Branches. But the Committee recognizes that, even if expedited, this controversy will not be fully and finally resolved by the Judicial Branch—including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court—before the 110th Congress ends on January 3, 2009. At that time, the 110th House of Representatives will cease to exist as a legal entity, and the subpoenas it has issued will expire.
….
In view of the above considerations, we see no reason to set the appeal on an expedited briefing and oral argument schedule. If the case becomes moot, we would be wasting the time of the court and the parties.

Last I heard consummate can down the road kicking was not an affirmative duty in the judicial canons. This is buggered up. Basically the Court has said "We’re going to presume there would be further appeal, which we are going to presume will take us past the moot date of Congress turn over – and VIOLA – it is already therefore effectively moot. Buh bye, gotta go lunch and martini now!"

Lest you think I am kidding about the pernicious nature of this decision, get a load of the specially concurring, and kind of dissenting, Judge Tatel:

Nevertheless, I am perplexed by the panel majority’s willingness to grant a stay while hypothesizing that the expiration of the 110th Congress might moot the case before it is heard on the merits. Never have we granted a stay that would have the effect of irrevocably depriving a party of its victory in the district court. Nor have we authority to do so, for a stay in such circumstances would necessarily cause "substantial” — indeed, overwhelming — harm.

Man; no kidding. That is kind of an understatement there Judge.

As much of a disgrace as this opinion is, the real fault lies with Nancy Pelosi, Steny Hoyer and the Democratic Leadersheep as they intentionally strung out the filing of this litigation to an extent that compels the conclusion this is the precise result they desired.

The Democratic Leadership screwed off all kinds of time in addressing the issue, and, when they finally did, they completely rejected common sense, and even Judge Bates’ advice that they needed to man up and exercise their Constitutional prerogatives. By that, of course, he was referring to the exercise of their inherent contempt power.

Par for their course, Pelosi, Hoyer et al. did not even discuss protecting and defending the Constitution and the Congressional prerogative inherent under the Separation of Powers. These "leaders"are so derelict in their duty as to be treasonous.

Today Tomorrow (per CHS) is a big day in the life of Firedoglake, the debut of the new, powerful and reader driven Oxdown Gazette. Oxdown will be run by Ari Rabin-Havt, formerly of Harry Reid’s office, an immensely talented and committed progressive voice. But the real power behind Oxdown will be you, and all the other readers, who heed the call and step forward to lend their voice to the work ahead. You are the future; the time is now.

Fittingly, one of the first substantive contributors anteing up at Oxdown is none other than our own longtime Emptywheel and FDL regular, masaccio. Following the lead started by Marcy in her The FISA Loss: Recommendations for the Future post, masaccio has taken the next step in formulating a progressive based action plan. He has done an excellent job identifying several key goals and discussing modalities for obtaining them, and the thoughts and suggestions previously made by many of you here at EW and FDL are an integral part of his discussion. Go read What Should Obama Do For Us? and make your own further suggestions as to what we can accomplish through, and obtain from, Barack Obama in return for our support and votes. Here is my suggestion.

I would like a full and definitive pledge to open and transparent government. When the Democratic leadership were campaigning to claim a majority in 2006, and after they seized that mandate in the election, there was a promise made to change the ways of Washington, specifically in Congress, and stop the secretion of legislation being proposed, stop secret manipulation in back rooms, and to insure that bills are available to the individual members of Congress and the public sufficiently ahead of time to allow intelligent analysis and informed review before voting on the floor.

But when it came to seminal landmark legislation fundamentally weakening and eroding the rights of, and guarantees made to, every citizen that are embedded in the Fourth Amendment, they reneged. When it came to the literal, and arguably unconstitutional, taking of vested monetary claims, by mass numbers of US citizens, being actively and affirmatively pursued in courts of law against co-conspirator telephone companies, the Democratically controlled House of Representatives reneged. Instead of living up to their promises, Nancy Pelosi, Harry Reid, Steny Hoyer, and a cast of cronies saw fit to do an about face and operate covertly and clandestinely out of sight, in the shadows, concealing their craven machinations not only from the public, but the vast majority of their fellow Congressmembers too, before coercing a hasty and ill informed vote. The citizens of the United States deserve better treatment and more respect from their elected representatives.

Mr. Obama needs to make a vow to change this pattern and practice for the sunlit better once and for all. Then he needs to convince us why we should believe he is not being patently duplicitous, like Nancy Pelosi, Harry Reid and Steny Hoyer were the last time Democrats sought more power from us. Mr. Obama, let the sun shine in.

As you know, the FISA Amendments Act has been being negotiated behind closed doors by Steny Hoyer, Kit Bond and friends for some time now. See here and here. Well, the action is coming a little faster than we all anticipated.

It now appears quite clear that either the House will vote on the War Funding Supplemental and then go to the FISA Amendments ACT or, and it is not clear at this time what the odds on this are, link the two bills and vote on both at the same time. Here is what we do know. House has finalized their war supplemental bill, and it appears to be a go for a vote tomorrow (Thursday). So, the best evidence is that the vote on FISA will be on Friday June 20, and may be as early as Thursday night. There is precious little time left to make our voices heard.

Here is what Liz Rose from the ACLU gave me for publication:

One thing bugging me is that we do not have the Hoyer draft and neither do reporters; and yet some reporters are believing every single word Hoyer says. Feingold, Leahy, Conyers do not have the draft; the only people who do have it are Rockefeller, Bond, and Hoyer. People who are for the proposal. And yet I have not yet heard anyone question why that is. No sunshine and no one demanding to see the details.

Plus, even if leadership will vote with us, and act like they are on our side, the truth is they control the calendar. Nothing happens unless they want it to. It is so cynical and calculating. And it seems that the unwritten story is that this whole FISA cave in is really all about the DCCC and their worries about freshmen dems getting re-elected. They are not afraid of terrorists — they are afraid of ads about terrorists. If they were really afraid of terrorists they would just extend the orders. But all they really want is to reward the big telco contributors and get more checks for their campaign coffers. It is all political.

But I think they are wrong. Fear mongering did not help Guiliani win. And remember how good the House Dems were when they stood up on FISA and said no to the senate bill?. I will keep you up to date. Thanks. Liz

She is right. We, and more importantly, the Constitution, are being sold out for rank political posturing. Pitiful state of affairs that.

Here is the latest scheduling information from the House I can find.

Subject: House Approps 2008
TRACK BILLS: House Approps 2008
Draft Bill — Fiscal 2008 War Supplemental Appropriations (House)
Official Title: Fiscal 2008 War Supplemental Appropriations (House)
Cosponsors: No reported cosponsors
Next Scheduled Action: June 19, 2008 — Scheduled action — House Rules Committee (Chairman Slaughter, D-N.Y.) will consider a rule for floor debate for pendiing legislation. Time TBA, H-313 Capitol Bldg. New
NEW on this bill
Bill Actions
June 19, 2008 — Scheduled action — House Rules Committee (Chairman Slaughter, D-N.Y.) will consider a rule for floor debate for pendiing legislation. Time TBA, H-313 Capitol Bldg. New

So, for any Wheelers and Lakers, if you find better information, please post in the comments. Maybe we will have a longer period to act in, but history shows that we must assume the worst. That means the FISA vote, the big kahuna, is going to be Friday, and maybe even Thursday night. Heave Ho.

Whether by design or random chance, there is so much information, on so many and diverse subjects, flooding the politically astute citizen currently that it is hard to keep track. It seems like we are drawn from one crisis and seminal issue to another with the passing of not every day, but with the passing of every hour. And yes, they are all pretty much that important; but there are some that portend not just how we do in our lives, but who we are and what we stand for in the first place. Chief among those is the question of whether we are a nation of men freelancing in the public trough of goodwill, or a nation of laws in which men operate within the rule of law and under the edicts and guidance of our founding fathers and the Constitution they bequeathed us.

One of these issues has been at the forefront of out conscience for nearly a year now; the issue of how to improve the Foreign Intelligence and Surveillance Act (FISA) for the future we face and how to address the criminal violations of FISA we have suffered in the past. How we resolve FISA will go a long way indeed in indicating whether we are a nation of admirable laws or, alternatively, of mere opportunistic men.

The three critical parts of FISA that are the subject of the heated and protracted fight over reform are exclusivity, minimization and retroactive immunity. Simply put, exclusivity refers to the relative degree in which the resulting FISA law will control this area of the law. The original FISA statute was designed to be the

…exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted.

As Marcy Wheeler has pointed out however, the Bush Administration performed a terminally disingenuous end run around the exclusivity mandate of FISA via one of John Yoo’s made to order faux legal opinions. The exclusivity provisions must be made impervious to such sophistry and with sufficient teeth to insure future compliance by the executive branch.

Minimization is the word for the procedures the government uses to

remove and (eventually) delete any data from US persons collected incidentally in the course of surveilling someone overseas. If we could be guaranteed that minimization procedures are sound, then the whole debate over wiretapping would be easier because we could rest assured that if the NSA picked up anything on a US person it didn’t have a warrant for, it had to destroy it. That would mean that Americans could trust that they would only be wiretapped with a warrant approved (eventually, anyway) by a judge.

We live in an ever complex society served by ever more sophisticated communication means and devices. Even when our government takes it’s duties to protect the privacy and fundamental Constitutional rights of the citizenry seriously, which has certainly not been the case over the last seven plus years, it is impossible to not incidentally and accidentally collect up information that should not be so obtained. Getting minimization right means that the government will not wrongfully retain and/or use inappropriately obtained information and data.

Retroactive immunity is by far the most easily understood of the three concepts. The sole question is whether or not approximately forty lawsuits, that have already been consolidated into one general whole in the Northern District of California, for the convenience and economic efficiency of all concerned, will be dismissed in order to cover up the misdeeds and crimes of the Bush Administration and the rich multinational phone companies that conspired with them, or whether they will be allowed to legally proceed so that we may all learn the truth about what has been done in our name and accountability therefore assigned. It is really, at the root, that simple; truth and accountability or craven coverup.

The desperate push on FISA by the Bush Administration, complicit and subservient Republican Congressional leaders, and their telco partners is about to explode onto the forefront again. You are already starting to see the advance seeding by proponents seeking to seed the public with fear and alarm that if we don’t get on board with the whims and desires of the Bush Administration we will be exposed to terrorism and all die. In direct response, Professor Martin Lederman performs a beautiful technical dissection of this fraudulent scare tactic in full detail here.

No, the FISA fix is not about "listenin to al-Qaida to protect America from terrists" as George Bush et al. would have you believe. We have been doing that, and are going to continue to do that; and there is no disagreement whatsoever on that point. Rather, how we resolve FISA is what the disagreement is about, and it is a glaring symbol of what we are, and are going to be, as a country. We are either a nation of laws that protects citizens and their right to seek redress for being wronged by their government and it’s agents, or we are a nation of self serving men like George Bush and Dick Cheney that can, and do, get away with whatever illegal and immoral acts they desire.

Two men that have recognized that fact and stood resolutely and heroically from the outset are Senators Chris Dodd and Russell Feingold. Today, they remind us of what leadership truly is by way of a joint letter to the Democratic Leadership currently controlling the shape of the FISA fix process coming to a head.

As you work to resolve differences between the House and Senate versions of the FISA Amendments Act of 2008, we urge you to include key protections to safeguard the privacy of law-abiding Americans, and not to include provisions that would grant retroactive immunity to companies that allegedly cooperated in the President’s illegal warrantless wiretapping program.

With respect to immunity, we are particularly concerned about a proposal recently made by Senator Bond, and want to make clear that his proposal is just as unacceptable as the immunity provision in the Senate bill, which we vigorously opposed. As we understand it, the proposal would authorize secret proceedings in the Foreign Intelligence Surveillance Court to evaluate the companies’ immunity claims, but the court’s role would be limited to evaluating precisely the same question laid out in the Senate bill: whether a company received "a written request or directive from the Attorney General or the head of an element of the intelligence community … indicating that the activity was authorized by the President and determined to be lawful."
…
In other words, under the Bond proposal, the result of the FISA Court’s evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs’ lawyers are permitted to play, the FISA Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise.

As we have explained repeatedly in the past, existing law already immunizes telephone companies that respond in good faith to a government request, as long as that request meets certain clearly spelled-out statutory requirements. This carefully designed provision protects both the companies and the privacy of innocent Americans. It gives clear guidance to companies on what government requests it should comply with and what requests it should reject because the requirements of the law are not met. The courts should be permitted to apply this longstanding provision in the pending cases to determine whether the companies that allegedly participated in the program should be granted immunity.

Take a good look; read the whole letter. This is what real leadership looks like. If Pelosi, Hoyer, Reid, Rockefeller, and Reyes all had even half of the "right stuff" that Dodd and Feingold possess, we would not need to have this discussion. But, alas, they do not and, as a result, our collective backs are again against the wall on FISA. More, and higher leadership needs to occur.

Barack Obama has fought long, hard and well to win the chance and right to lead both the Democratic Party and the nation as a whole. It is time for him to so lead, and his leadership will make the difference in this fight if he is willing to take the mantle. I am not the first to call on Mr. Obama to step up to the plate. Last week, when the news first broke that HPSCI Chairman Reyes was indicating his, and his fellow Democratic House Leaders’, willingness to compromise cave and pass the Bush/Cheney FISA dream, dday at Digby’s Hullabaloo made a very eloquent plea:

I congratulate Barack Obama on his primary win and think he has the opportunity to bring forward meaningful change in America. In fact, he can start today. He can go to the well of the Senate and demand that the party he now leads not authorize new powers to spy on Americans and immunize corporations who broke the law with their illegal spying in the first place.
…
Barack Obama could put an end to this today if he wanted. He could tell his colleagues in the House and the Senate that they should not work so hard to codify into law what his opponent is calling for – the ability for an executive to secretly spy on Americans.
…
This really is identical to George Bush’s position and now the Democrats in the House are signaling their willingness to go along with it. Obama positions himself as a new kind of Democrat who wants to change Washington and has a background as a Constitutional scholar. There is no other issue which both shows the rot of the Democratic leadership and their disinclination to enforce or even recognize the Constitution than this one.

Truer words were never spoken. The time is now Mr. Obama, and you are the man. Even the Kennedys have put Mr. Obama up as a John F. Kennedyesque figure. Well, it is time for a Profile In Courage. And not just by Mr. Obama, but by all of the Democratic Leadership. The cause is just; the time is now. Limber you fingers. Oil your fax machines. Let Mr. Obama know that when he leads on this critical issue that we will not only follow, but will have his back. This is who we are; this is what we stand for. Let him know. NOW!

UPDATE II: The ground is shifting already. From The Hill:

Congressional Republicans are reviewing a Democratic proposal to break the logjam on electronic-surveillance legislation by allowing federal district courts to determine whether telephone companies seeking legal immunity received orders from the Bush administration to wiretap people’s phones.

That differs from a plan that Republicans, with support from the White House, floated right before Memorial Day that would give that authority to the secret court that operates under the 1978 Foreign Intelligence Surveillance Act (FISA). In both cases, the courts would not decide whether those orders constitute a violation of the law, according to people familiar with the language. The plan was floated by House Majority Leader Steny Hoyer (D-Md.) and has the support of Sen. Jay Rockefeller (D-W.Va.), the chairman of the Intelligence Committee.
…
“While several issues still remain, Sen. Bond believes he and Hoyer are making progress on crafting an ultimate compromise and remains hopeful that a bill to keep American families safe can be signed into law before the August expiration moves the intelligence community back to 1978,” said Shana Marchio, communications director for Sen. Kit Bond (R-Mo.).

Rockefeller said he is “mildly optimistic” that the plan could yield agreement, and added that the status of negotiations is “getting pretty darn good.” (Emphasis added)

The Democratic Leadership takes us for fools, and treats us accordingly. They have taken the Republican/Bush-Cheney White House dream plan and substituted the words "District Court" for "FISA Court" and run it up the flag pole to see if we will salute. Even Jello Jay Rockefeller seems like he might realize that this is pitifully weak and lame and is just hoping the citizenry is stupid enough to acquiesce. Let me repost the applicable paragraph from Senators Dodd and Feingold that addresses this latest ruse, with the only changes necessary:

In other words, under the Bond Democratic Leadership’s proposal, the result of the FISA District Court’s evaluation would be predetermined. Regardless of how much information it is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs’ lawyers are permitted to play, the FISA District Court would be required to grant immunity. To agree to such a proposal would not represent a reasonable compromise.

This willingness of the Democratic Leadership to belligerently betray the trust and best interests of their constituents, party and country is simply stunning. This is weak, shameless and traitorous leadership at it’s craven worst.
(h/t MadDog)

UPDATE I: Sen. Obama Phone (202) 224-2854, FAX (202) 228-4260 Courtesy of Rosalind in comments.

The week starts off with Main Core, Glen Fine’s much anticipated IG Report has been released, today is another state election (Kentucky) in the most hotly, and closely, contested primary that many of us can remember, and, now, the tragic and deflating news that Senator Ted Kennedy has a malignant brain tumor. Oh yeah, and an extended holiday weekend and Congressional recess is at hand in a couple of days. This type of situation can mean only one thing – FISA is bubbling back to the surface. Heck, the only thing missing from this equation is a terror alert; but then again, the week is still young.

First off, where we stand. The news is not all bad, but it sure isn’t all good either. From the National Journal (subscription required-sorry):

House Majority Leader Hoyer had previously said he wanted to reach a compromise on FISA by the Memorial Day recess. GOP and Democratic aides cited several reasons why that has not happened. Late last week, Hoyer sent Senate Republicans a list of provisions that House Democrats want included in a final bill, aides said. Hoyer’s proposal took Senate Republicans by surprise. A Republican aide called the proposal "a step backward."

Before Hoyer’s proposal, Senate Republicans believed that only two main issues needed to be resolved, and that they were close to reaching an agreement on them with House Democrats. One issue dealt with having the secret FISA court determine if the telecom firms should be granted retroactive immunity from lawsuits for their role in the administration’s warrantless electronic surveillance activities since the Sept. 11, 2001, terrorist attacks. The second issue centered on allowing the FISA court to review the administration’s procedures and certifications for surveillance operations. "We’re basically there on those two," an aide said.

But Hoyer’s proposal included other provisions, some of which had already been defeated during votes in the Senate, aides said. One provision, for example, would allow the FISA court to assess if the government is complying with so-called minimization procedures, which limit the amount of information collected and stored on Americans incidental to the surveillance target. Another provision contains language making FISA the exclusive means under which the government can conduct electronic surveillance.

The good news is that it appears that there is little chance that anything is going to be attempted before the Memorial Day recess. The other good news, and I will be very pleasantly surprised if it maintains truth, is that Hoyer is really pressing minimization and exclusivity. These are critical concepts above and beyond the retroactive immunity part that we standardly focus on, see Marcy’s discussions, among others, here and here. These are important concerns, and Hoyer and his working crew are to be commended for keeping these concepts part of the bargain.

The bad news, however, is, as I have long feared, that the compromise involves allowing retroactive immunity, but submitting the determination on it to the jurisdiction of the FISA Court. And Pelosi is firmly on board for this:

She told several leading House liberals — including House Judiciary Chairman John Conyers and Reps. Maxine Waters, D-Calif., and Barbara Lee, D-Calif., — in a closed-door meeting that included Blue Dogs that a compromise would likely be needed on the issue of granting immunity to the telecoms.
…
Pelosi is said to have argued this was needed to get a guarantee that the regulation of electronic eavesdropping would be the exclusive purview of the FISA court. Leadership and Blue Dog sources said Pelosi has made it clear that exclusivity is the most important issue for her in negotiations heading forward.

There is no question but that minimization and exclusivity are critical elements going forward, and Pelosi is surely correct that they are more important on FISA itself going forward. But it is weak, shameless and traitorous leadership that is willing to sanction and ratify the most breathtakingly egregious and widespread lawbreaking and mass violation of the citizen’s rights to privacy in the history of the Union in order to get it. Especially when they don’t have to, and are doing so out of raw electoral political concerns. Let’s face it, the status quo is more than functional for the next seven months until a new Congress and, hopefully, a new administration takes office. There is no reason in the world that the House should not do what they have recently done, pass a good bill and, if the Senate Republicans block it or Bush vetoes it, so be it; then tar and feather the Republicans for the act.

The FISC is too much of a rubber stamp for Administration requests, the whole application to, and determination by, the FISC would undoubtedly be done ex-parte and the whole thing classified and secret (thus protecting Administration duplicity). This is no way to go. And here is one more thing to chew on in this regard. In over 25 years of existence, the FISC has outright denied a Government application a grand total of 4 times. In many of those 25 years, the FISC was more liberal and protective of privacy rights than it is now. And here is the clincher. By my estimation, two FISC Judges, James Carr and Nathanial Gorton, had their terms expire last Sunday, and we have no idea who Chief Justice John Roberts is appointing to replace them. It is a pretty safe bet that it will be Bush compliant judges though, which certainly doesn’t augur well for immunity determinations. Giving the FISC the authority to impose retroactive immunity is a very bad move and should be fought with every ounce of intensity we have mustered in the past on this subject.

As a parting shot, there is a bit of humorous irony of the John Boehner "Crying Lame" variety. Chris Frates at Politico has a timely article up today on the hypocrisy of the GOP’s leading wailer:

When a federal judge ordered Rep. Jim McDermott to pay House Minority Leader John A. Boehner and his attorneys more than $1 million in damages and legal fees for leaking an illegally taped phone call to the media, Boehner said he pursued the case because “no one — including members of Congress — is above the law.”

Why, then, is the Ohio Republican trying to squash similar lawsuits against telecommunications companies who cooperated with the government in warrantless electronic surveillance, ask the attorneys behind the class action suits.

“Mr. Boehner is trying to kick millions of Americans out of court in a wiretapping case while collecting more than $1 million in his own wiretapping case. It’s the height of hypocrisy and seems to indicate that members of Congress are entitled to their day in court but the average American is not,” said Kevin Bankston, a senior staff attorney at the consumer rights nonprofit the Electronic Frontier Foundation.
…
Bankston said he found it insulting that Boehner would attack the attorneys representing millions of Americans as money-grubbers while he and his attorneys were “lining their own pockets.”

Boehner screams and cries to get immunity for Bush, Cheney and the telcos while denying citizens the very rights he brandishes like a peacock. Insulting money grubbers lining their own pockets indeed. Pretty much summarizes the whole Bush/Cheney regime. Nancy Pelosi and Steny Hoyer are wrong to permit these people to slip off the hook; let’s make sure they know what we think of that.

The folks that read and participate at Emptywheel are, in my humble opinion, without any question the best anywhere at deconstructing email issues and cases, and it sure looks to me like some of the people litigating these various matters are picking up on that too. That being the case, who could possibly deny you more fodder?

The Democratic National Committee has been suing the DOJ in DC District Court to obtain some 68 pages of emails relaing to the US Attorney purge. The main reporting to date has been from Politico:

A federal judge has handed the White House a legal victory in a battle with the Democratic National Committee over e-mails related to U.S. attorney firings.

District Judge Ellen Huvelle of the U.S. District Court for the District of Columbia ruled Thursday that the DNC does not have a right under the Freedom of Information Act to 68 pages of e-mails sent between White House and Justice Department officials simply because the White House e-mail traffic was transmitted on a server controlled by the Republican National Committee.
…
In dismissing the DNC lawsuit, Huvelle ruled that it was "based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications."

Additionally, Huvelle decided that just because an RNC server was used to send the messages — 68 pages out of more than 5,000 which have been denied to the DNC — it is not enough to automatically disqualify the Justice Department from claiming a FOIA exemption in refusing to release them.

"It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications," Huvelle wrote in her opinion.

I think there are two issues to be contemplated here. The first is the relative propriety of Huvelle’s decision, and foundation therefor, in the DNC case, and the second is what implications it may have for the greater mass of contentious email issues that are percolating in our midst. Here is the full opinion rendered by Judge Huvelle in Democratic National Committee v. United States Department of Justice, CV 20070-712 (ESH-DDC).

There were originally 5,337 pages of emails responsive to the DNC’s FOIA request, but agreement was reached as to all but 68 pages. All of the e-mails at issue were sent between officials in the White House and the Department of Justice and were sent to or from an e-mail address with the domain name “GWB43.com” pertain to matters such as "responding to an upcoming Congressional hearing, formulating official responses to inquiries from outside the Executive Branch, suggesting a plan of action for the appointment of a U.S. Attorney or conferring on issues arising from such appointments, recommending revisions to documents, and pfor the hiring of new Department personnel." The sole basis for the DOJ production refusal was FOIA Exception Number 5, contained in 5 USC 552 (b)(5) which provides that the FOIA

does not apply to matters that are . . . inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . . . .

The critical discussion by Judge Huville is, in condensed form, as follows:

First, plaintiff’s position is based on the false factual premise that White House officials only used their RNC e-mail accounts for political communications. While plaintiff is correct that RNC e-mail accounts were originally “supposed” to be used exclusively for political communications (see Pl.’s Ex. 3 at 5), it is clear from plaintiff’s own exhibits that, in fact, this supposition did not become reality.
…
It is therefore clear that RNC e-mail accounts were used (rightly or wrongly) both for official and RNC business, and thus the nature of the server is not necessarily informative as to whether the document contained official or political communications.
…
Given this apparently flagrant violation of the Presidential Records Act, plaintiff contends the Court should not treat the requested e-mails as official presidential communications to which the presidential communications privilege applies under FOIA.
…
However, the administration’s violation of the Presidential Records Act is, as plaintiff acknowleges (id. 8), not before this Court, and it cannot serve as a basis for determining whether the government has properly invoked Exemption 5. Moreover, plaintiff fails to point to any case law that would indicate that the server where an e-mail is housed is relevant to its treatment under FOIA. Rather, under D.C. Circuit precedent, it is the content, not the form, of the communication that determines whether it is properly exempt under Exemption 5.
…
Therefore, because the form of the document does not factor into the analysis under FOIA, the Court cannot adopt a per se rule that any e-mails sent on the RNC servers are not covered by FOIA. In the absence of such a per se rule, the remainder of plaintiff’s argument collapses.

That is the Reader’s Digest synopsis, but the devil is always in the details, so if this really interests you, by all means, read the entire decision with footnotes. I think the first thing to keep in mind is that this decision was made strictly within the context of a FOIA request; the DNC would not have had standing in any other circumstance, so this is a pretty limited ruling and I don’t think anyone should get to exercised that it went south.

Notwithstanding the above, I have some issue with the way the decision blithely dispensed with the executive privilege element, which really was given short shrift. The court strains to make the claim that the DNC relies solely on the argument that the emails are reachable because they were on the RNC server; however, skips right over the impact that the fact that they were distributed to the independent third party and how that seriously undermines the executive deliberative process privilege claim. The White House knowingly and intentionally used this non-secure and violative means of communication, that distributed through non-involved parties; if they don’t act in any manner consistent with a privileged communication, how is this not a privilege buster? There are certainly arguments that might could be made to overcome the thought that this was a direct waiver of privilege, but it is pretty hard to understand how the Court, even on it’s own if necessary, didn’t address the clear prima facie appearance of a direct waiver. Bottom line, if it is viewed through the restricted lens the court set forth, this might be a correct decision; given the more detailed full view that should have occurred, not so much maybe.

Now for the more fun part of this exercise, namely what can we take away from the decision? I think there are several goodies in there that may be useful in various places of interest to us. First off, even Judge Huvelle can’t escape making the conclusion that the facts exhibit willful violations of the PRA and Hatch Act, notwithstanding her reticence in making such a formal determination because that was not issue before the court. Albeit it in dicta, there is a good deal that supports a lot of arguments and suppositions that have long been made in the discussions at Emptywheel and TNH. I believe Marcy, and many others will find the contents of Footnote 3 of the decision to be of interest.

Pustay has categorized the 68 contested pages into six numbered groups. Group 3 includes an e-mail from the White House to DOJ forwarding an e-mail about an impending Congressional hearing and soliciting assistance and an e-mail chain regarding an internal White House discussion about how to respond to an inquiry from the North Dakota Attorney General’s Office. Group 6 includes a set of e-mails from the White House to members of the Judicial Selection Committee (“JSC”) advising on dates, times, and locations of JSC meetings and listing the participants and portions of two e-mail communications discussing a proposed plan of action regarding nominations. Group 21 includes one e-mail chain between the White House and DOJ in which the correspondents discuss potential candidates for a United States Attorney position and develop a selection process. Group 25 includes portions of two e-mails chains discussing how to handle DOJ’s response to a controversy regarding the nomination of a United States Attorney and portions of one e-mail chain in which the response to a news article about the replacement of a U.S. Attorney is discussed. Group 26 consists of various e-mails regarding the impending appointment of United States Attorneys, including a discussion of hiring issues and background information on the candidates. Finally, Group 28 is comprised of portions of e-mail communications discussing the merits and logistics of hiring of a particular individual to work at DOJ.

The Bush Administration and their never say die FISA/Immunity push are like cockroaches. You can’t kill em, and they never go away. Well, they’re back again. Attorney General Michael Mukasey has graduated from DC water carrier to full fledged traveling snake oil salesman for the Cheney/Bush Administration and their sordid attempts to cover their own criminal wrongdoing via retroactive immunity for telcos.

Last night, Mukasey spoke at the Commonwealth Club in San Francisco and got so emotional in his desperate plea for retroactive immunity and unlimited snooping that he he welled up with tears in the process.

… Mr. Mukasey grimaced, swallowed hard, and seemed to tear up as he reflected on the weaknesses in America’s anti-terrorism strategy prior to the 2001 attacks. "We got three thousand. … We’ve got three thousand people who went to work that day and didn’t come home to show for that," he said, struggling to maintain his composure.

Isn’t that special? Who from this Administration of criminals, fools and incompetents will cry for the Constitution that has been shredded? Who will lament the privacy of ordinary American citizens that has been lost? Who will shed a tear for the souls that have been tortured, beaten, extinguished and/or disappeared? That would be left to us I guess. There is no justice; just us.

Here, from the San Francisco Chronicle, are a few more highlights from Mukasey’s traveling minstrel show:

Attorney General Michael Mukasey defended the Bush administration’s wiretapping program Thursday to a San Francisco audience and suggested the Sept. 11 terrorist attacks could have been prevented if the government had been able to monitor an overseas phone call to the United States.
The government "shouldn’t need a warrant when somebody picks up a phone in Iraq and calls the United States," Mukasey said in a question-and-answer session after a speech to the Commonwealth Club
…
Mukasey also defended President Bush’s insistence on retroactive immunity for telecommunications companies that have cooperated with the administration’s surveillance program, in which phone calls and e-mails between U.S. citizens and foreign terrorist suspects were intercepted without warrants.
…
"They have cooperated," Mukasey said of the companies, without naming them. "It just ain’t fair to ask somebody to cooperate with the government" and face a lawsuit for substantial damages, he said.
If Congress denies the companies retroactive immunity, he said, the firms will withdraw their voluntary participation and the government will have to seek court orders, losing time and potentially valuable intelligence and risking exposure of secret information.
"We face the prospect of disclosure in open court of what they (the companies) did, which is to say the means and methods with which we collect foreign intelligence against foreign targets," Mukasey said.

Madness! Madness! Madness! Crikey, it does not matter one iota how much this stuff is completely debunked, they just trot it out with impunity again and again.

The reason I am posting this, other than as general informational courtesy, is that EW is not the only one that has been on vacation; so too has been the Congress and, as to the FISA/Immunity fight, all of us. The Cheney/Bush surrogates have, undoubtedly, not been on vacation and have been plying their wishes and snake oil to the blue dogs and others to set up their next legislative push. When you see Mukasey working the room in San Francisco, the home of EFF, the AT&T Folsom Facility, Pelosi, DiFi and the conservative perceived heart of the liberal base, you know the game is on. We need to saddle up and get ready as well; because next week is time to get back to work on slaying the twin headed FISA/Immunity beast.

ERRATA: I really struggled with the video clip selection here. I must be growing up or something because I put up the one that actually showed Mukasey at the Commonwealth Club in Frisco. However, the last 3/4 of this video is what I really wanted to put up instead. Seeing, feeling, touching and listening to you; thats what the Bushies want to do.

From the NYT:

The House Judiciary Committee asked the Justice Department Thursday to temporarily release former Alabama Gov. Don Siegelman from prison in early May to testify before Congress about possible political influence over his prosecution.

A spokeswoman for the committee said Siegelman, a Democrat serving more than seven years in a Louisiana prison, would travel to Washington under guard of the U.S. Marshals Service. She said Committee Chairman John Conyers, a Michigan Democrat, believes Siegelman could provide important information about Justice Department practices under President Bush.

This is good news. Not necessarily because I think it will lend a lot of new facts that will do the trick to spring Siegelman from what appears to be a very bum rap, but because it will really build on the wave of national publicity started by the 60 Minutes segment.

I have not yet seen anything additional as to details, such as who other witnesses would be, exactly what Conyers hopes to accomplish, etc. Perhaps we should help the Judiciary Committee out and come up with a game plan for them. Any suggestions?

UPDATE: Well. Wow. That was fast. I figured the request by Congress would turn up the heat on the 11th Circuit in relation to Siegelman’s release pending appeal, but I didn’t really want to jinx the concept by saying so in the post. BREAKING NEWS from The Birmingham News via TPM:

Former Gov. Don Siegelman will be released from prison, after the 11th Circuit Court of Appeals granted him an appeal bond, the lead prosecutor in the case said.

Acting U.S. Attorney Louis Franklin said he received a courtesy call from the court today. "He’s going to be released," Franklin said.

He said he was disappointed but added, "The 11th Circuit has the discretion to do that, and I respect that.