This is a different diary for me.  It's not link heavy, but rather is a written exchange between Rhode Island Democratic Senator Sheldon Whitehouse, who I proudly voted for, and myself regarding his February 12, 2008 vote and his July 9, 2008 vote on FISA.  Rather than editorialize (I'll leave that up to you all) and rather than attempt to paraphrase Senator Whitehouse (I want to avoid miscommunicating his response to me), I will simply present the written, unedited exchange between his office and myself below the fold (in the spirit of my right to privacy, however, I have chosen to delete my actual name and my address).  As I promised the senator, I said I would attempt to teach others what he has taught me about his FISA voting record. So, class, here's your lesson:

Inhofe got his one denier witness. So for a while it was dueling scientists, the Larry Craig version. But the other gentleman was a former EPA official who resigned in June.

They are honing in on the decision process. There is the law, the Clean Air Act, there is the Supreme Court decision on carbon dioxide, and then there is the President's preference. The California waiver and effect on human health are the two things I have picked up as areas of concern.

EPA Administrator Johnson was set to issue a partial waiver and after a White House meeting this was not done. Passing the Energy Bill of 2007 was taken as license to pass the buck and stall. This seems to be in conflict with Johnson's testimony. The professional staff recommended the waiver, and the law supports this decision.

I can't understand how two Senators can make such convincing arguments about what is wrong with the "Foreign Intelligence Surveillance Amendments Act of 2008 in the form of H.R. 6304" (FISA Amendments), and then vote "yea" on Passage of the Bill.

I need someone to explain this to me.

I have included excerpts that contain remarks from Senator Sheldon Whitehouse and Senator Arlen Specter, as recorded in the Congressional Record for July 08, 2008. The complete record can be found here.

Again, Senator Whitehouse and Senator Specter both voted to make FISA Amendments the law of the land.

Senator Sheldon Whitehouse (D-RI), December 7, 2007:

[L]ook what the Bush Administration does behind our backs when they think no one is looking. For years under the Bush Administration, the Office of Legal Counsel within the Department of Justice has issued highly classified secret legal opinions related to surveillance. This is an administration that hates answering to an American court, that wants to grade its own papers, and OLC is the inside place the administration goes to get legal support for its spying program.

As a member of the Senate Intelligence Committee, I was given access to those opinions, and spent hours poring over them. Sitting in that secure room, as a lawyer, as a former U.S. Attorney, legal counsel to Rhode Island's Governor, and State Attorney General, I was increasingly dismayed and amazed as I read on.

To give you an example of what I read, I have gotten three legal propositions from these OLC opinions declassified.  Here they are, as accurately as my note taking could reproduce them from the classified documents.  Listen for yourself.  I will read all three, and then discuss each one.

1. An executive order cannot limit a President.  There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.  Rather than violate an executive order, the President has instead modified or waived it.
2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.
3. The Department of Justice is bound by the President’s legal determinations.

In a nutshell, these three Bush administration legal propositions boil down to this:

1. "I don’t have to follow my own rules, and I don’t have to tell you when I’m breaking them."
2. "I get to determine what my own powers are."
3. "The Department of Justice doesn’t tell me what the law is, I tell the Department of Justice what the law is."

When the Congress of the United States is willing to roll over for an unprincipled President, this is where you end up.

Senator Sheldon Whitehouse (D-RI), June 25, 2008:

Question:  On Cloture on the Motion to Proceed (Motion to Invoke Cloture on the Motion to Proceed to H.R. 6304 )

Measure Title: A bill to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.

Whitehouse (D-RI), Yea  

Sheldon Whitehouse believes in Double Secret Exclusivity. He is living in a dream world.

UPDATE: Looking for something to do about it? Your Senators are coming home to wave the flag and march in your hometown July 4th parades. Why not be there to show the colors yourself?

UPDATED DIARY - beginning now with Mark Klein, the AT&T whistleblower, explaining why there should be no retroactive immunity.

On the flip, Russ Feingold, Chris Dodd & others speak FOR and against retroactive immunity -- and on the dangerous flaws of the various versions of the revisions to the FISA law.

The Secretary of Defense runoff poll between Chuck Hagel and Jim Webb was a real nailbiter. Results below the fold.

With the Obama Veepstakes poll now concluded and Gov. Bill Richardson as your chosen running mate (which was covered by the Santa Fe Reporter) it's time to take this a step further:

Who would you like to see in an Obama cabinet?

Thus far, Joe Biden won the Sec. of State poll and Michael Bloomberg won the Sec. of the Treasury poll (results below the fold). Today you can vote on the next Attorney General:

Friends, it's time to channel our anger about the direction the Clinton campaign has taken into action. It's time for us in the netroots to lobby our Democratic elected officials, particularly those who are uncommitted or have already endorsed Clinton, to withdraw their support for her campaign, or at the very least, use their influence to demand that she dramatically change her campaign's tone.

Do elected officials really want to remain associated with a campaign defined by fear-mongering, race-baiting, and gratuitous slanders against the rising star of our party?

Below the fold, I've attached my letter to Rhode Island Senator and Clinton campaign co-chair Sheldon Whitehouse.  Please feel free to suggest improvements to it, and better yet, to adapt it to your own purposes for lobbying your own elected Democrats.  It's time for action.

From the NY Times:

The Justice Department revealed Friday that its internal ethics office was investigating the department’s legal approval for waterboarding of Qaeda suspects by the Central Intelligence Agency and was likely to make public an unclassified version of its report.

This is the first "official acknowledgment" of the Justice Department's internal review of documents created since 2002 that authorized waterboarding and approved Cheney's "robust interrogation" methods. Gen. Michael Hayden, Director of the CIA, has admitted that waterboarding was used by CIA agents. Attorney General Michael Mukasey has said that CIA agents would not be prosecuted for actions the Justice Department had advised them were legal.

I can see Mukasey's point, but someone should be held accountable. A memorandum drafted by John Yoo and approved by Jay S. Bybee, then head of the department’s Office of Legal Counsel, is apparently the justification for CIA agents torturing people.

If Mukasey will not prosecute CIA agents, then he should hold Yoo, Bybee and the other DOJ lawyers responsible for the memo(s) accountable.

Upon reading the synopsis of the so called Whitehouse-Spector substitution amendment, it immediately became apparent the real reason behind the amendment.  By shifting the legal obligation to the White House, it enables them to claim executive privilege.  This will prevent any potentially embarrassing information from escaping.  We must stop this!
Every needs to urge their Senators to vote against the so called Whitehouse-Spector substitution amendment.  Otherwise, this could end up yet another instance where they barely sneak by.

In an exchange between Attorney General Mukasey and Sheldon Whitehouse during today's Justice Department Oversight hearing, Mukasey, without admitting that it has ever happened, had an interesting defense of torture:

WHITEHOUSE:  You are the top law enforcement officer of the United States and prosecutors do look back.  Prosecutors do investigate things that have happened in the past.  They do dredge up the past in order to do justice...Now the president has said that we will investigate, prosecute all acts of torture and you've just said today, "if someone is guilty of violating the laws of the United States," they get prosecuted...There is jurisdiction over the activity prohibited if the alleged offender is a national of the United States and a person who conspires to commit an offense under this section is subject to the same penalties other than the penalty of death..."  So, we have a statute on point, you are, I believe, the sole prosecuting authority for that statute, correct?

MUKASEY:  I am as the top of the Department of Justice, which is the sole prosecuting authority.  [...]

When it comes to past conduct, one of the many questions involved in past conduct in addition to what was done, is, what authorizations were given, what authorizations were reasonably relied on.  My current evaluation of the statute, if there is one, has only tangentially to do with that because if it has directly to do with that, then the message is, your authorization, you who did whatever you did, your authorization is good only for so long as the tenure of the person who gave it and maybe not even for that long...

WHITEHOUSE:  The message you send otherwise is that 'I was only following orders' is a fine response.

MUKASEY:  It's not a fine response.  It was a response at Nuremberg that was found unlawful, we both know.  Ummm...

WHITEHOUSE:  And yet it's the one that you're crediting right now.  'I had authorization and therefore I'm immune from prosecution.'"  Isn't that where that analysis leads?

MUKASEY:  No, it's, I had authorization and let's take a look at the authorization.  If the circumstances under which it was given and what was done have a whole wide range of variables that I don't have before me.

WHITEHOUSE:  Has that been done?  Has there been a thorough, independent analysis under your administration of whether or not any national of the United States is potentially in violation of Section 23-40A as the result of...

MUKASEY:  I don't, I don't start investigations out of curiosity.  I start investigations out of some indication that somebody might have had an improper authorization.  I have no such indication now.   [...]

WHITEHOUSE:  I don't see how that resolves the Nuremberg defense problem.  If the reason that you're giving us for investigating the destruction of the tapes, but not investigating the underlying interrogation, is that it appears that the interrogators were following orders and it appears that the destroyers were not, isn't that the Nuremberg defense?

MUKASEY:  No, because you're assuming what was on the tapes, you're assuming that the interrogation was unlawful...

WHITEHOUSE:  I'm not assuming any such thing, anymore than you'd be assuming that the destruction was unlawful.  What I'm suggesting is that you should investigate it and there should be at least somebody who at least takes a look at this in a principled, thoughtful way, and if the answer that comes back is, no, there was not a crime and here's why, then we can lay the question to rest.  But if you're telling me that this hasn't even been investigated although the destruction of the tapes is being investigated, it strikes me that there is a split standard there and I'm trying to understand why.

What an embarrassing, infuriating disgrace.  The Attorney General of the United States reduced to a Nuremberg Defense

Day two in our five-part series on the most-overlooked stories of the FISA debate.

Telecom immunity may very well give President Bush immunity for years of domestic spying and warrantless wiretapping

This week, fellow Kos diarist Patriot Daily News Clearinghouse posted a piece outlining in great detail how President Bush’s push for telecom immunity may be a shadow push for his own protection.

It would be difficult to find a dkoser who would not agree that Sheldon Whitehouse - our new Democratic Senator from Rhode Island - has distinguished himself as a remarkably brilliant, valuable and persuasive member of the Senate Judiciary Committee. Yesterday, when he took to the floor of the Senate he made fine points about the importance of protecting the privacy rights of American citizens travelling abroad.  But then he departed from his prepared remarks and argued for the Intelligence Committee version of the FISA legislation - the version that provides retroactive immunity for the telelcoms.

I'm not saying that I agree with him.  I just think that it's useful to review his reasoning, because we all know that this fight is far from over.  


[please follow me below the jump for a transcription of his statement]

Make no mistake, Chris Dodd was incredible yesterday.  The man made me proud to be an American again.  In a perfect world, his display would catapult him to the top of the Democratic ticket.

But he wasn't alone.  And I think we should all take a moment to listen to one of his colleagues.  Mr. Sheldon Whitehouse was in full effect yesterday.  I don't know if he wrote this himself, but let's take a look at what he said.

I'm going to say this ahead of time, and while I hope I'm proven wrong, I expect to be right.

Not only will cloture (60 YEA votes) be reached by the end of the week, when it is reached, I expect there to be at least 5 more YEA votes on cloture than there  were  YEA votes on the awful bill they skipped Yearly Kos to pass.

My evidence comes not just from cynicism about Congressional Democrats. The main source is Senator Sheldon Whitehouse's committee vote and statements.

I am returning to Friday's speech by Sheldon Whitehouse (video here), in which he excoriated the Bush Administration for their egregiously unconstitutional legal justification for the Warrantless Wiretapping Program.  The diary to follow is pure speculation, but I believe that there are several clues indicating that one of the key controversies of the Bush Administration's Wiretapping program will turn out to be the fact that this Administration conducted warrantless monitoring of the communications of American Citizens working overseas.  This group certainly includes contractors and servicemen and women in Iraq, citizens working for NGOs, and importantly, the Press.

It turns out that President Bush has been harboring, but withholding from his subjects, at least from the non-trusted subjects, three secret opinions.

Senator Whitehouse of Rhode Island has graciously translated the opinions of Bush into common English.  They are outrageous opinions.

I was going to make this first post an introduction explaining how I came to be reading blogs everyday, how it all started in the Fall O' Aught Three...how I came to bookmark the old Calpundit blog because it had the best blogroll on the web, even though I didn't know what a blogroll was called at the time...ah memories. He used to have a mountain of traditional media links on the side of his page, links going places like the Toledo Blade and The Houston Chronicle, The New York Times, and The Seattle PI. I bookmarked it and used his page as my gateway for reading the news. Then, of course, the TANG story got big and Kevin got deep in the weeds, starting to link to more of those funny-named websites sitting below the traditional news sites, so I started reading those too.

Anyway, I was going to write some long pointless post of introduction like that, but decided no, I won't do that. Instead, I'm going share a video I put together in the time I should have spent writing a better first post. I've tried to repackage Sen. Whitehouse's recent speech into a condensed version, one that hopefully relays to the viewer the import of his revelations in an understandable, but shorter, manner. After the jump.

"treason, bribery, or other high crimes and misdemeanors."

Yesterday's speech by Sheldon Whitehouse (video here, thanks bumblebums) on the floor of the US Senate was the first salvo in the accounting of the criminality of the Bush Administration in Warrantless Wiretapping of US Citizens in contradiction of existing FISA law.

In his speech, Whitehouse focuses on the legal justification of the Warrantless Wiretapping Program.  James Comey and Jack Goldsmith told Congress where to look for illegality, and Sheldon Whitehouse has done so.

Along this path lays tangible evidence for demonstrating that George Bush and Dick Cheney should be impeached.  Whereas this outcome is a seeming impossibility, it is certain that along this path lays political fallout for the GOP and their Democratic enablers.