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Jim Webb Speaks out on FISA and the Role of Bloggers in Legislative Fights |
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The following exchange took place on the eve of the FISA vote, July 8th, between myself and Virginia Senator James Webb.
All emphasis is mine.
Josh Nelson: You mentioned the role the blogosphere played in your Senate campaign. I was wondering if you could elaborate on that a little bit. And also tell us what type of role you would like to see them play in legislative fights in the future.
Jim Webb: The blogs… the good news and bad news about blogs. First the bad news. The bad news is anybody can say anything about someone and they don’t even have to put their name on it. In fact, the anonymity encourages irresponsibility. And it is pretty frustrating, I’ll be honest with you, that’s why I just stopped reading this stuff a long time ago.
The good is, when there are allegations made, in any variety of formats, there are people who know the facts, and step forward, and correct the facts. People who put their name on it and correct. We had, from day one we had strong support from people in the blogging community. In fact, I wasn’t even sure I was going to run for office. After Katrina, I went up and saw my friend Bob Kerrey, the guy who told me that Moynihan wrote 17 books. And talked to him for the first time about the mechanics of running. I’d obviously been involved in political commentary for a very long time. In listening to Bob Kerrey I sort of thought I was going to do it and then I looked at what it would take to raise the money and all the rest of this and I wasn’t sure. There were people in the blogging community who heard that I was thinking about running and on their own they started a draft Webb for Senate campaign. They got 1,000 signatures on this, they came over and saw me, I spent an hour and a half talking with them. And you know that was a big part in terms of convincing me that yea well maybe I oughtta step forward and do this.
With respect to legislation, what I, I think the blogs really communicate, in a very intelligent way, on a couple of these really complicated issues, I would hope they wouldn’t lock themselves into positions so early, uh, there’s some really complex pieces of legislation that kind of get boiled down…
Josh Nelson: Are you talking about FISA?
Jim Webb: Specifically I’m thinking about FISA since I have to vote on it tomorrow afternoon.
(laughter)
That’s a very complicated issue and I’ve looked at it from every single angle that it can be looked at. Having had the black clearances that we were talking about, and at the same time I’m very strong on privacy rights. It’s not an issue that is easy to boil down in the way a lot of the blogging community has boiled it down.
I like a lot of things about Webb, but disagree with him here. (great post by the way, Josh) I think the debate over the FISA amendments was pretty straightforward–should the Bush admin be able to order private companies to break the law (with the companies receiving retroactive amnesty), should a government that has abused its authority by illegally spying on Americans be given broad new surveillance powers?
We are often offered a false “choice” between liberty and security, as if the two are mutually exclusive, and as if we can purchase security by giving up liberty. It’s too bad that we can’t have rational discussion of these matters–the Bush admin has succeeded in making it all about fear
The dozens of pages of bureaucratic legalese stuffed into the FISA bill is a bit daunting indeed: the constitution, however, is quite plain and straightforward in its language. The two are in conflict and no amount of red tape could fix that.
We just have representatives who refuse to represent those of us who are genuinely trying to understand the issues. The ones who have “boiled it down” to oversimplification are the ones saying outright falsehoods like “you have nothing to fear unless Al-Queda is on your speed dial”
Which Constitution are you reading? The U.S. Constitution is extremely vague. That’s why we have these controversies, everyone reads it differently. Nowhere in the Constitution is the word “privacy” mentioned… it is similar to the lack of a concrete distinction between church and state.
What the Constitution does go to great lengths to explain is the checks and balances between the three branches of government. This bill preserves those checks and balances and stops the Bush administration from abusing the system any further. It establishes a court through which every wiretap must be approved, and not retroactively.
The retroactive immunity is part of a compromise (rememer, that’s how government works), and it is a good compromise in that it is relatively meaningless. Sure the telecoms can’t be sued, but it preserves the right of the justice department to level criminal charges against them.
On retroactive immunity - from The Constitution
“No bill of attainder or ex post facto Law shall be passed.”
Why should we allow only the Government to bring charges against private companies that violated the law and injured individuals, the same government that has failed us so well and so many times? Our Congress people are giving away our rights, instead of protecting them.
On warrants for search - from The Constitution
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “
The original FISA legislation (the court already exists even though GB43 has been ignoring it) arguably was unconstitutional for various reasons including allowing unwarranted search for a period of 72 hours. It is my understanding this legislative refresh of the FISA court authorization includes a number of provisions that make it even more unconstitutional including allowing the administration to continue surveillance if a warrant is denied by the court.
But I think that this is exactly what Webb is addressing - the FISA bill doesn’t provide amnesty and I do wish people would stop saying that. It allows for amnesty if the phone companies can prove they received orders from the govt. That was the law anyway so there was no way around this. What we should be addressing is the fact that the phone companies cannot prove their innocence because the government refuses to actually release detail of who exactly it asked to be monitored etc.
There’s no law that says a person is immune from prosecution for breaking a law if the government ordered him/her to do so. Quite the contrary, citizens (and service people) have a duty to disobey illegal orders. (Remember, the “Nuremberg Defense” didn’t work.) The attempts by the Bush administration to protect perpetrators of war crimes and other felonies by writing “torture memos” and the like are (or should be) for naught. Now if only we had judges who took their oath of office seriously, and enforced the law.
well said Independent
What has been the role of bloggers in legislative fights?
Absolutely none. FISA has been universally condemned in the Blog arena and Congress still passed it.
And there has not been any major outcry from the general public about it’s passing.
I think we have crossed the point of no return.
We no longer have a government of the people, by the people and for the people.
I am proud to call Jim Webb my senator. He talks to the electorate like adults.
I read Webb’s comments and felt that he fancies the general public as children who cannot tell right from wrong rather than adults.
I’ll have to disagree with Chris and Independent here. Nowhere does this bill provide immunity for the administration. (nor does it preclude their ability to be charged with criminal charges, but that’s another story).
So no, the Bush administration, and indeed any administration, should not be able to do what they’ve been doing. They should, and I hope they will, be prosecuted for their breach with the constitution.
I would urge people to trust those that are involved in these debates, and do spend the time parsing these pieces on legislation. “NO KIND OF IMMUNITY EVER UNDER ANY CIRCUMSTANCE” is almost as stupid an attitude as “DEPORT ALL ILLEGALS NOW”.
These are complex issues, we’d all do well to heed Sen. Webb’s advice and not fall into the same traps that the hard-right dittoheads stumble over every day.
I agree Independent. But another question that arises from this complex issue is exactly what can our government do to prevent acts of terrorism? Think of how unfortunate it would be should terrorists within our boarders communicate to each other within a one to two minute phone conversation and our government gets a subpoena to tap into the conversation after the fact. Any suggestions?
Thats again the wrong facts. The original FISA allowed immediate surveillance with retroactive warrants. I believe it was 3 days. Plenty of time to get a warrant and keep listening while the warrant is issued. The Bush admin bypassed that and never bother to obtain the warrants. They decided on their own that the law was bad and instead of changing it just threw it away. Thats breaking the law and now its all been forgiven.
The law already give the government 72 hours retroactive clearance to tap without a warrant. The main issue is that after the fact, a FISA review is necessary. The government is not someone else, the government is us. We need to remember that. Ronald Reagan brainwashed a whole generation into thinking that we were separate from the government. We are suffering from that delusion to this day.
First of all, I don’t think this legislation covers (permits) domestic wiretapping.
Secondly, there seems to be a tendency to assume that terrorist are idiots. I think it is due to the fact that the stupid ones are the ones that get caught, and also due to the fact that the stupid ones are the ones that are “set-up” to be “terrorists”
Thirdly, the existing FISA law permitted the government to tap first, get a warrant second. This ensured that their was judicial oversight. The new bill states, to my understanding, that the government only needs to get a warrant that covers the type/form of wiretapping. Judicial oversight has been negated if not eliminated.
Terrorists are likely to use code words, key expressions, etc. Unless the intelligence community already has inroutes to who they are monitoring and what their intentions are. If they already are monitoring these people, why can’t they bother to get a retroactive warrant?
A government as large as ours loves technology. I think the intelligence services have convinced the government they need this, but what this really amounts to is data mining . Terrorist are aware, and have been aware for decades of the weaknesses of technology.
This bill, in my opinion, does very little to prevent terrorism. It does, however, grant the government leeway in monitoring it’s citizenry for political and perhaps business motives.
Wound-Up, I think you should read Executive Order 12333, on Intelligence Oversight. I am a fan of FISA and believe judicial review is necessary when it comes to domestic wiretapping…however, let me play devil’s advocate for a moment.
Based on 12333, US intelligence agencies cannot posses information on US Persons (except for the FBI under very restricted exceptions). So, if a call from Osama bin Ladin in Pakistan is made to the US, that call can be recorded but not listened to until Judicial review is complete (as you mention, possibly as long as 72 hours)…but here the problem gets more complicated. What happens if the US Person then calls another person in the US…could be Mom, or it could be the “go” signal for a terrorist attack. If they are using codewords and “mom” calls the rest of the cell to say you are 3 hours to detonation…and 48 hours after the attack, FISA releases the calls that show it might have been stopped had you only been able to listen to what you had?
This is the conundrum we are faced with. Which is the worse evil? Listen to stop the attack or wait and watch Americans die? What would you do?
What are “black clearances”?
We should not compromise the Bill of Rights and that’s exactly what we’ve done with this Act. This Act only attempts to legitimize the reckless disregard of the Constitution by our own Government.
Rather arrogant of Webb to think that FISA “is so complicated” that ordinary Americans can’t understand it.
Fact is that many Americans understand it very clearly and this is something that the Senate should pay closer attention to. We do understand what was done. We are not stupid.
The FISA bill was nothing more than a red herring to protect George Bush and his administration from being charged with the felony that they commited.
That FISA bill is not “complicated” at all. The FISA court has been in place since 1978, for 30 years. For 30 years the process defined by law has been that when the government wants to spy on an American citizen, they go before the FISA court and get a warrant. They then take this warrant with their request to a Telecom and ask them to spy on a citizen.
What Bush did was to skip the part about obtaining a warrant. He went to the Telecoms and asked them to spy on Americans without the warrant. He knew better and so did the Telecoms. After all the law has been in place for 30 years. It was a felony for Bush to make this request and it was a felony for any Telecom to agree. That is why not all Telecoms agreed to the Bush request. But those who did got fat government contracts as a reward.
The FISA amendment, with its retroactive clause, restates what was already law and add a clause that makes Bush and the Telecoms not guilty for breaking a 30 year old law and commiting a felony.
It’s not complicated to understand at all.
Wrong Liz. The original FISA, despite the trendy new revisionist history being promulgated in the blogoshpere, allowed the government to wiretap without getting a warrant a priori. You get it? If this bill “eviscerates” the warrant requirement of the Fourth Amendment, so did the original FISA. Where was your outrage then? Have you been writing about this since 1978? Do you hold Jimmy Carter and each of his successors to the same standard the blogosphere is now holding Obama? Didn’t think so.
Oh, and the bill does not immunize the Bush Administration. This is one of the most annoying myths being spread by the armchair lawyers of the blogosphere. It gives immunity to Telecoms in CIVIL (not criminal) actions. No criminal immunity for anyone.
Your lack of knowledge is exactly what Senator Webb was talking about.
If the populace can’t understand the so called complicated law then the failure of this lies on the political leaders. Its their duty to explain to the populace why they doing what they doing. They are entrusted not only to run the government but also to lead the people. U can only lead if u explain what you doing and people then can choose to accept you or reject u. If democrates think that FISA’s retroactive immunity is ok and Mr. Bush admin didn’t do anything wrong then come out and say it and wait for populace chance to either endorse the view or reject it.
Furthermore Mr. Web if Populace is too stupid to understand the complication of running the govt then the Govt has gone berserk. What’s next no elections as populace too stupid to keep electing a moron as president twice and giving republicans majority over and over?
Webb did not say that Americans can’t understand it. He said “That%u2019s a very complicated issue and I%u2019ve looked at it from every single angle that it can be looked at. Having had the black clearances that we were talking about, and at the same time I%u2019m very strong on privacy rights.
It%u2019s not an issue that is easy to boil down in the way a lot of the blogging community has boiled it down.” That is different. I don’t trust representatives to do the right thing but I do understand when a representative is speaking to the public in an intelligent manner.
I do not agree with Webb or Obama and others on a constitutional level but we are not playing constitutional chess, we are playing political war. The stakes are high and in truth, life or death for many.
The FISA revisions do not negate criminal investigation. The bill can still be challenged in court as to its constitutionality. We take it for granted that the Unitary Executive holds all the cards but it’s like a hostage scenario in which the hostages must negotiate with the terrorists until SWAT can take them out. This country is being threatened by constitutional terrorists and we need to figure out how to outmaneuver them without tipping our hand.
Remember that Bush the power to push the button until he is no longer in office. Do we want McCain with his finger on that button next?
The new FISA bill allows the executive branch to spy Americans for 7 days without a warrant. If they are then denied a warrant they are allowed to continue the spying while it is appealed. Then, if ultimately, after months, they are denied a warrant they can still use the info collected from the beginning. This is warrantless wiretapping and is unconstitutional.
I think Senator Webb may be right, in that posters here in support of the FISA legislation do not seem to understand this purposefully complex bill.
“Think of how unfortunate it would be should terrorists within our boarders communicate to each other within a one to two minute phone conversation and our government gets a subpoena to tap into the conversation after the fact. Any suggestions?
An excellent example. Since both terrorists are within U.S. borders, their conversation would not be legal to monitor FISA, as the fix is for U.S. to foreign or foreign to U.S.
A quote from the FISA bill clearly shows this: ” (b) Limitations- An acquisition authorized under subsection (a)–
`(1) may not intentionally target any person known at the time of acquisition to be located in the United States;
And the criteria for who can be spied upon is AT BEST ambiguous and confusing:
`(b) Limitations- An acquisition authorized under subsection (a)–
`(1) may not intentionally target any person known at the time of acquisition to be located in the United States;
`(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
`(3) may not intentionally target a United States person reasonably believed to be located outside the United States;
`(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
These vague terms, such as is ‘reasonably believed to be’ or ‘not intentionally’ give the Government plenty of wiggle room (we did not intentionally target persons within the U.S.)
The discretion is left to the Attorney General and other intelligence officials; from the same administration that gave us Gonzales we are supposed to rely on their judgement to do the right thing. It is ‘trust us’ legislation, and this administration long ago lost any trust from most (77%) of Americans.
There is no oversight; the courts review general procedures not specific cases.
Now that we have 1 million people on the so-called terrorist watch list (like there are 1 million terrorists here)here is a chance to monitor millions more people, without a warrant, or court order as demanded by the 4th amendment.
which part of the 4th amendment is too complex for Senator Webb to understand?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
With the Bush administration deciding what is unreasonable, we have, in effect, invalidated the fourth amendment.
Webb’s point is that it is a complicated bill that is difficult to encapsulate. He’s right. Most people on the net (a) haven’t read the bill, (b) don’t understand the 4th amendment, (c) are pissed off about retroactive immunity, and (d) are relying on horrible generalizations published by the MSM.
For an intelligent, non-reactionary analysis by an excellent law professor who specializes in survelliance law and criminal procedure, Read Orin Kerr’s analysis here: http://volokh.com/posts/1215878469.shtml
Kerr’s bio: http://www.law.gwu.edu/Faculty/profile.aspx?id=3568
As a business owner, I know I would comply with Government demands for information on my clients. Otherwise, I face their wrath. Sure, I would see this as bullying but what choice does one have?
That said, I would make sure the act and any documents I recieve make it to wikileaks
This issue raises a problem with campaigns financed by a large number of small donors. Bear with me here. Let’s assume for the moment that there is an excellent reason for Webb and Obama to pass the new FISA bill, and that if we simply understood the full complexity of the situation then we (4th amendment junkies) would support their positions. Presumably, then, we currently don’t understand the complexity because in order for Obama/Webb to explain their positions to each of us they would risk compromising some matter of national security. The alternative is to vote yay, take his ‘lumps’ and move on, hoping that we’ll trust him enough to come along.
What’s missing from this situation is a netroots representative or group of representatives able to be trusted by the campaign with the ‘complications’, and who can vouch for the campaign in front of the 1.7 million donors.
With that said, other senators in the know looked at the full complexity of this situation and decided to vote nay, and the Feingold-Dodd/Obama-Webb split may be represented in the netroots also, were all to be revealed. Who knows on which side of the devide each of us would fall?
Is Obama so stupid as to think that he’s going to peel off independents by voting for the new FISA bill? Given Obama’s political savvy and experience with the constitution I have to think not. What then do Obama/Webb know that we don’t? Does it matter? I tend to think not. Live free or die!
My impression was different — that what influenced Webb was more a matter of factors we cannot know about for “national security” reasons, which is bullshit, really, because if there is something so horrible going on it requires subverting the Constitution, we should know about it.
and to beat the band the white house cant find any of there e-mails for the last seven years..lets just stuff this shit in the PERFIDY file.
As far as I understand, the new FISA law is not just about giving the government new power to wiretap. It also REQUIRES them to obtain and submit a warrant to the FISA court within a week of beginning the wiretap (if the warrant was not obtained up front). And this is a good thing, because the old FISA law did not require that - it only required that if the government did not have the time to get a warrant up front, they should submit along with the wiretap order a “guarantee” from the Attorney General that the wiretap is “legal”. And that was as good as nothing, because the AG would of course always say that it’s “legal” and any real investigation was impossible, because the government could always invoke the State Secrets Privilege Act (which allows them to not disclose any information if that could “endanger national security”). Now at least they will have to obtain the warrant afterwards and submit is to the FISA court.
So in any case, the guilty one is the Bush government, not the telecoms. The FISA law (even the old one, signed in 2005, I think) REQUIRES telecoms to cooperate with the government even without an issued warrant. And it’s not really their fault if the government is corrupt and abuses its powers and if the AG is a liar.
That’s amnesty.
Part of the original FISA act was there to prevent companies from being compelled to comply with illegal government orders. They aren’t supposed to blindly follow executive orders if there was concern that the actions they were asked to undertake were illegal.
The immunity provision of the FISA amendment act absolves them from some responsibility if they just followed orders, even if they knew those orders violated the law. That’s the whole point of the telecom immunity.
Jim Webb, along with every other Senator and Congressperson who voted for this obviously unconstitutional bill, and along with Bush who signed it into law have all committed treason.
Many of them have shown a consistent pattern of voting for unconstitutional bills and thus a consistent pattern of committing treason.
They took an oath to defend and uphold the Constitution. They did not take an oath to protect the people. Every time they pass a law claiming they are protecting the people, there is a good chance they are instead destroying the Constitution.
Jim Webb and the other traitors should all be immediately arrested and removed from office by WE THE PEOPLE.
This present day scenario is like 1933 Germany when they lost their democracy because of the laws passed by their version of our Congress.
Now in 2008 America, do you know where our Constitution is?
That’s a constitutional challenge pitting citizen’s vs corporate rights to the court that just reduced Exxon’s liability to 5% of the original jury award, in the year when they’ve just made the highest profit in human history.
What is it they say about Corporatism and Fascism? Oh, right. The same.
Webb is another traitor to his constituency. There is nothing even remotely legal about retroactive immunity. Fuck em all. Time to burn this motha down. Ohhh, sorry Mr. Webb a little too common blogger for you. Eat shit lying traitor clown!!
I posted this comment on digg, but I’ll post it here too…
While I am sympathetic to the point the author aims to get across, the title is an unnecessary hyperbole. Nowhere in his statement does he “attack” blogs. He does criticize what he perceives to be pitfalls of the greater blogging community (while heaping a good bit of praise). The pitfalls he raises are quite reasonable too. As a fan (and participant) of the blogosphere, I can say with confidence that a majority of the blogging community do not delve into policy minutiae, which is not a bad thing (those who have unrelated jobs have only so much time in their life). But this large bloc of people, who do not have expertise on an issue, can develop a herd mentality… much like talk radio listeners. Now blogs are different (and better) because it involves and encourages participation, but this does not mean that herd mentality and a possible misunderstanding of an issue are completely washed away.
Should we be labeling an honest critique as an “attack?” Note that these criticisms deserved to be challenged fully, but I would like to think those in the blogosphere would take it as an opportunity for introspection, rather than a chance for O’Reilly like bluster.
Those of you talking about criminal liability still being an option fail to realize that Bush can just pardon all the telecoms and your criminal activity goes right out the window. So basically this “law” wipes out all evidence of them breaking the law in the first place and makes it impossible for the American people to seek justice for the lawbreakers. Need I remind you that Qwest knew this was an illegal request by Bush and refused to comply? No govt agent can force a private company or person to break the law.. they were required to get warrants to do what they did.