Fix the USA PATRIOT Act

In the last couple of weeks very important things have been going on in the realm of Civil Liberties, and our concern for issues like Health Care, Iran, Afghanistan and the Chicago bid for the Olympics have distracted us from it. And it is not going well. You can help. Help put pressure on the US Senate and House of Representatives to put important protections of the rights of "US persons", our citizens and resident aliens into the law as it is renewed.

If you listen to Fox News, "Some on the Left" or "Some Democrats" want to strip the federal government of critical powers to protect us from terrorists. Unfortunately, as they are making these claims in defense of the USA PATRIOT Act, they get most of the facts wrong. Julian Sanchez of the CATO Institute has a video and blog posting that tears their coverage apart.

So what is really going on? If the Democrats aren't trying to completely eliminate valuable anti-terrorist tools, what has been happening the last two weeks?

First of all, several sections of the USA PATRIOT Act are up for re-authorization, because they were passed with a "sunset clause" that makes them expire at the end of the year. According to even official Inspector General reports from both administrations, the Patriot act has lead to substantial abuse of US Citizens constittution rights. In response to these abuses Senators Feingold and Durbin introduced an act called the "JUSTICE Act". "JUSTICE, like "USA PATRIOT" is a goofy acronym, in this case standing for "Judicious Use of Surveillance Tools In Counterterrorism Efforts. Note that while I'll call the acronym goofy, but the act itself is far from that. It basically insures that a number of these special powers authorized in the USA PATRIOT Act and other post-9/11 legislation are only used against terrorism, that the government has to establish a connection to terrorists in order to use "John Doe roving wire taps", "sneak and peek" secret searches, "National Security Letters" and other procedures.

Resources: Feingold and Durbin's fact sheet on JUSTICE and the actual text of the bill.

A broad coalition supported the JUSTICE Act. Senator Leahy, however, submitted his own bill that offered fewer limitations and protections and the Senate Judiciary Committee (SJC), which Leahy heads, decided to use it as a starting point. Many of us started to agitate to get pieces of the JUSTICE Act supported as amendments to the Leahy bill. The evening before the bill was taken up by the committee, Diane Feinstein, chairman of the Senate Intelligence Committee made a deal with Leahy. An even weaker bill that she largely wrote, and which he cosponsored, replaced the Leahy bill as the starting point. Only a small amount of work happened on that bill last Thursday, before it was postponed until this coming Thursday, due to conflicts caused by the Senate also doing markup on the Health Care bill which was drawing Senators away.

Resources: Comparisons of the JUSTICE Act and Leahy's bill from Center for Democracy and Technology, Julian Sanchez on Cato@Liberty, and Marcy Wheeler on Emptywheel.
Resources: Reactions to last week's SJC meeting from the EFF, the ACLU, David Kravetz, Wired's Threat Level

And that brings us to this week and Thursday's coming second round of markup on the bill. We, that is grass roots civil libertarians, Get FISA Right, the ACLU, the EFF and others, would like you as citizens, as bloggers, as Facebook and Twitter users to make you voices heard. We'd like you to blog, tweet and write about this effort in order to get as many people as possible involved, and for all of you and them to bring pressure to bear on your senators, especially if one of your senators sits on the Judiciary Committee, and your Congressmen and any other Senators and Congressmen you may support, contribute to or know, to do the right thing. To work for and support amendments, whether they come from the JUSTICE Act or other sources that restrict the circumstances and the purposes under which these powers can be used.

Why? Well, I started out bashing Fox coverage on this, let me now shift to praising one Fox commentator and recommending that you listen to his highly knowledgeable and impassioned speech against the USA PATRIOT Act and National Security Letters. Please watch Judge Andrew Napolitano's speech on "Natural Rights and The Patriot Act", shown here. His explanations of the history of our Constitution, laws and the abuses of citizens' rights regarding the USA PATRIOT Act and National Security letters are well worth listening to whether your politics are left, right or center. I recommend watching all three parts.

As ever, I don't want you to just believe what I say. I want you to read and listen and learn. Form your own opinions. I've included a number of links to pertinent resources in the posting above and the two videos. Get FISA Right has a resource page with more links and more calls to action. Please read there. Join us when several of us live blog during the hearings on Thursday. If you agree with us sign and retweet our Twitter petitions. Blog about what you believe, but above all, be a Free Voice. Be a voice for freedom.

Resources: Our Twitter Petition: "@RussFeingold and @SenDurbin, thanks for your tireless efforts to reform the #patriotact http://act.ly/kn (please RT)"
Resources for activists: Get FISA Right's "How to help bring JUSTICE to the PATRIOT Act" page.
Resources for bloggers: Get FISA Right's "JUSTICE Act blogger resources" page.
Resources: For live-blogging: Get FISA Right's Patriot Act Action Hub

Vox Libertas,
Jim Burrows

Re: Jim, I need your voice on health care--Sorry, sir

Mr. President,

It is with great sadness and regret that I must decline your emailed request. I do this with intimate and personal knowledge of how important this legislation is. I am a computer consultant by profession, and with the downturn in the economy, my income has been slashed to a small fraction of what it once was. In fact, our family has had to rely heavily on my wife's part-time income while I attempt to build a whole new business. Last week, that reliance ended. In a fall down the cellar stairs, my wife broke one ankle and the other foot. Because I have been self-employed for the last 2.5 years and my wife is only a part-time employee with no benefits, our only health insurance is what we can afford to pay for out of pocket. The bills arising out of her injury and her inability to work combine put us in a precarious position.I find myself having to rely on the charity of others, on the Council for Aging in our small town, on volunteer organizations such as Household Goods Recycling of Massachusetts, and the support of family members.

Believe me, sir, I know how important health care reform is. I understand intimately how critical the Recovery and Stimulus plan are. I could not believe more in the important work that lies before you economically and with regard to health care. I understand that health care was, quite understandably your primary object during much of the campaign and that the economy has become both a problem of its own and an obstacle to the extremely hard work of making progress on health care.

Sadly, sir, while I believe all that, and my own livelihood and home are threatened by the dual threat of healthcare costs and the collapsed economy, none of that is my primary concern. No, sir. My concern is for the health of our Republic and not of the body or the economy. I love my wife, and I love my family, and I love my home. But we are strong and we will survive, somehow. My deepest concern is for the heart and soul of this country, for the Rule of Law, for the principles upon which this great nation was conceived, and to which it is dedicated. And that, sir, I believe is endangered. It is endangered by torture; by indefinite detention; by warrant-less surveillance, search and seizure; by kangaroo courts that fail to uphold either our civilian laws or the uniform code of military justice; by the notion that the highest ranking officials can break our laws and not be investigated, let alone prosecuted; by a government that clouds its crimes in claims of secrecy and unspecified nationally security. Today, sir, it is endangered by you.

After eight years of a Presidency that plumbed depths of deceit, greed, corruption, war crimes and the arrogation of raw power, I voted for you in hopes that we could turn the page, that we could heal this land, that we could restore the rule of law. Sadly, sir, it seems that we cannot; that your view of the presidency, of executive privilege, of state secrecy, of the immunity of the powerful from the rule of law is too tainted by the power illegitimately accrued by your predecessor. It seems, sir, that the old adage is true. Power corrupts and absolute power corrupts absolutely.

So, no, sir, you may not have my voice on health care, nor on the economy. You may not have it even though the woman I love is in bad need of better health care, even though this economy is depriving me of the ability to support my family. At this time, even in the face of those great crises, I have only enough voice for this: "Return us to the Rule of Law, not men." Close Gitmo. Stop the Military Commissions. Try the prisoners or free them. Forswear prolong and preventative detention. Investigate the War Crimes and prosecute the guilty. Stop hiding behind Executive Privilege and National Security. Save my country. Save it for my children and their children. Save it for your children. This is not a distraction. Without our Soul this country dies.

I will find some way, through the charity of strangers, the support of my family or the Hand of Providence to get my wife the care she needs. I will find a way to join with others to build a company to employ us all and save our homes and livelihoods. It will be hard, but since they brought my multi-great grandfather to these shores in chains for the crime of being a Scot and supporting the wrong absolute ruler, my family has found a way to do those things. Somehow, I and mine will find the way to protect and fend for ourselves. What you, sir, must do, is defend this country, and despite all that has been said in this new century, the threat to this country is not foreign fanatics. It is domestic fanatics. It is power misused, law abandoned. It is forgetting what makes this nation great. It is abandoning our principles.

I am not of your party. I am an independent. Yet, I voted for you, and worked for you and wept with joy to see a man with your background, both in heritage and in principle, elected President. The promise of it! The hope. Live up to that hope, sir. Give us back our Country. That, above all, is what we need. Then, sir, I will join you in working for health care and the economy and the other great works there are before us.

Jim Burrows, aka Brons - Vox Libertas

Republicans, Republicanism and the Republic

The news last week was that only 20-30% of Americans are willing to identify themselves as "Republicans". When John Dvorak's blog polled its users as to their politics and party affiliation and asked them what the Republicans needed to do about this, the first response included the following,

Its likely a third party…conservative, will rise, if the Republican party cannot cleanse itself of Democrats aka RINOs

Then we would have no choice but form another party…however we are hopeful we can expel them…and recover those who left.

The Republican party is shrinking and losing votes, and the response of an ardent advocate of the party is that what they need to do is "cleanse itself" of the "Democrats aka RINOs" that are inflating its membership. Somehow, if the party can expel the Democrats in their midst they can then recover the true Republicans who left the party because of all these Democrats in their midst.

If I may, "WTF?!"

As an Independent who vote about 40/60 Republican/Democrat for the last three decades of the 20th century and who has voted 100% Democrat for the 21st, I think we Independents may not have made ourselves clear. The problem, dear Republicans is not that you aren't extreme enough, not pure enough, too infiltrated by Democrats. So, let me lay out what I, as an Independent who has stopped voting with the Republicans am looking for. It sure isn't a purer stricter, more conservative Republican party. And, by the way, it isn't what the Democrats of today are. They are second only to the current Republican party in needing to be torn to bits and rebuilt from scratch. I'm looking forward to turning on them. But not until there is something better.

So who the Hell am I, anyway? I'm an Independent. I do not consider myself a Conservative or a Liberal, a Republican or a Democrat. I might call myself a "Progressive" except that that label is used by Liberals who are afraid to use the word "Liberal" to describe themselves because the Conservatives have made it a dirty word.

So, labels being useless, let me say what I believe in:

• I am a fervent Civil Libertarian
• I am vehemently pro Habeas Corpus, pro-Posse Comitatus
• I am just as vehemently anti-torture
• I am anti-Big Government, Big-Business, Big-Labor
• I am pro-choice
• I am anti-abortion
• I am anti-war
• I am pro-veteran
• I am pro-gun
• I am pro-decriminalization of marijuana
• I think that ethics, and family values are in a shambles
• I am pro-marriage equality
• I am an agnostic. I'm sick of the religious right and the fundamentalist atheists
  

and so on...

In all of that, the key concept is that very few things are Black vs White, harsh dichotomies wherein one side represents virtue and the other all that is wrong wit the world. I tend to feel that truth is found in medias res, as they would say back when it was more popular to pepper your American with Foreign.

With the nomination of a Souter replacement on the horizon, we are soon to be blessed with the spectacle of the Democrats and Republicans beating each other with the absolute and diametrically opposed values of "a woman's right" with "baby killing", just as if that made sense. And the Media will egg the two sides on, just as if there were two sides. It's all very simple, really. You either believe in freedom or tyranny, life or death. You are on the side of the Angels or of the Devil himself.

Except that real life is nothing like that. As I said above, I am pro-choice and pro-life. In the 42 years since someone facing the decision first asked my advice, I have always said that it is the woman's decision, the woman's choice, her moral conundrum, and I have always advised for life, and against abortion. I have offered my support, my sympathy, my hand to hold and my shoulder to cry on, regardless of the decision. I do not believe in abortion. I have yet to encounter in life a time when I thought it was the right choice. That is my ethical judgment. I may disagree with a woman's judgment, but I refuse to judge her as a person for any difference that her judgment has from mine.

And the vast majority of the country agrees with me. And every woman that I have known who has faced the decision has known to her very core, that it is not a black and white issue, that there is no 100% unquestionable right or wrong for all people for all time. They see the decision, the choice, the responsibility, they weigh it, they are tormented by it, and they come to a decision. They need our respect and our support and our love. Not polarized polemic.

But we will not see that in the next few weeks, not unless we are very very lucky, not without the hand of Providence, I'll warrant.

Having looked of the future of Supreme Court nominations, lets turn to the recent past, the big "debate" of the last couple of weeks: the tortuous wrangling over torture. Since when has torture been a core Conservative value? When did the "Rule of Law" become the sole purview of the Left? How do you reconcile the "Inherent and Unenumerated Power of Sole Supervisor of the Unitary Executive, and Commander in Chief of All the American People" to detain and torture enemies of the state without trial, without probable cause, without right to counsel, without the right of habeas corpus or His right to spy in absolute secrecy on enemies of the state without warrant or probable cause with the Conservative values of small government, states rights or personal liberty?

When did the Republican Party become the party of Party Loyalty over the Rule of Law? When did Tyranny, the rule of a supreme leader in Washington DC dictating to the states become a Republican value?

There is one perspective that I can see that as making sense from. If you regard the Republicans as the Party of Lincoln, and do so from the perspective of a loyal Confederate, you can see where that trend has always been present in the party. If you view Lincoln as a modern day Caesar, tyrannically turning the Army on the citizenry, suppressing the rights of states and individuals in favor of a unitary federal power and the interests of New York bankers, then I suppose you can regard the Republican Party as having a tradition of choosing strong central authority over freedom. It's a fairly narrow view of the party, but it makes a certain amount of sense. BUT! But the people who are most prone to see things that way, to take the states rights position, to view the Republican party heritage as one of federal tyranny are conservative Southern whites. And they are the ones most embracing this modern authoritarian abuse. The party of Lincoln and northern banking interests is strongest among Southern white males. If I may, "WTF!?!"

I'm a heterosexual who will be celebrating 36 years of marriage in just over a month. I am grossly disheartened with the state of marriage and the family today. I swore before God and my family to love honor and obey in sickness and health all the days of my life, and I meant it. And too few people do that. I have watched dozens or scores f marriages break up over problems less severe than some my wife and I have worked our way through. for the last 7 or 8 years we have taken in other people's children, given them a roof over their head and a bed (or couch or bean bag chair, depending upon crowding) to sleep on, when their own families wouldn't.

I believe in family values. Deeply. And I am aghast at the state of disrepair and neglect that they have fallen into. I'm a philosopher by training and an ex-lay minister. Ethics and values are as important to me as my family and family in general. And so, I support the right of any couple to marry. Back when I was a teenager, that right was guaranteed even for mixed racial couples. I remember that event and I was enormously proud when that guarantee was extended to same-sex couples in my Commonwealth.

If marriage is in a sorry state today, it is not because of the efforts of those who have been denied access to it. It isn't the fault of them, of queer ("strange and unusual" in Joe the Plumber's words) others, it is due to people like me, to the majority of us, to people who were permitted to marry, who did so and made a terrible mess of it, to people who were permitted to marry and didn't bother.

I won't claim that I am typical of the Independents of this country. I know that I'm a little eccentric. Many of my values are a bit out of the mainstream, and when they are mainstream, they are often a mixed bag, a collection that many would see as in conflict with each other. But if my specific beliefs are not themselves typical, the fact that they are diverse, complex, involving shades of gray, that is typical. That is the character of Independents as a group, of the middle ground of American political belief. America may not agree with me. No other American may share all of my values or opinions, but the truth is that the swing voters, the Independents, the moderates, and probably the majority of Americans as a whole are like me than they are like the black and white, simple minded dichotomy that the Republicans, Democrats and Media present us with.

This country is becoming more diverse with every passing day. We are becoming a majority-minority country. We are becoming more ethnically diverse. More opinions, religions, sexual orientations, ethnic backgrounds are becoming empowered and active in the political scene, and the parties had better figure out how to deal with that.

It is totally in keeping with the traditions of this country. Our Founding Fathers were a diverse and squabbling lot. This isn't a Christian country, for instance. It is a country founded on Religious freedom specifically because it was a country in which Catholics and Protestants, Puritans and Quakers, Deists and Jews all had to tolerate each other when all other countries were Protestant or Catholic or divided between two, with Catholics and Huguenots in a deadly embrace or some such. We are the place where citizenship went from being just for land-owning members of the local parish to any land owner, to any freeborn man, to any man to any human. We can cope with universal rights, with diversity, with personal responsibility.

JimB. aka Brons
Jim Burrows
Vox Libertas

What does it mean to "get FISA right"?

[In order to get the discussion moving I posted this at GetFISAright and Change.org yesterday. Today, it is going to all versions of Vox Libertas except DKos. It will follow there. Please join the discussion in any or all of these. It is important that we get this right.]

As a member of "Get FISA Right", I find myself asking, "What does 'get it right' mean?" I don't have a definitive answer, but let me give a few thoughts as a basis for a discussion of the topic.

The Foreign Intelligence Surveillance Act (FISA) was originally passed in 1978 order to balance the legitimate need to spy on the nation's foreign enemies, with the Constitutional rights of her citizens, and especially to curb existing abuse. Technology has changed dramatically since it was written, and our enemies are different. Also, there has been a new round of abuse. All of these must be addressed.

To "get it right", let me suggest that we need:

1. One law that covers all spying
2. Require warrants when the US spies on
1. Anyone in the US
2. US persons (citizens and resident aliens) anywhere
3. Allow the intelligence agencies to spy freely on foreigners oversees, even if the taps are in the US
4. Require Executive, Judicial and Congressional oversight when protected and unprotected communications are entangled.
5. Criminalize violation of the Constitution.

Item #4 is a knotty one. Since foreign and domestic traffic flows through the same "pipes" and is in the clear, and it is not easy to tell just from the content who the participants are, software that sorts what can legally be captured from what cannot can violate the Constitution and the law if it uses the wrong algorithm or has a bug. This is what the "targeting" and "minimization" procedures are all about. There must be diligent oversight, and it requires esoteric expertise. It requires nerds and Constitutional Law experts. And the jurisdiction to oversee.

#5 may seem superfluous, but is important. If your Constitutional rights are violated, you can sue, but only if you prove you have "standing". If the violation was done in secret, that can be hard to prove. If the criminal law is violated, the Department of Justice and Law Enforcement can and should investigate and prosecute.

That's my framework. What do you think?

For a longer discussion, let me recommend the following blogs from last summer (disclaimer: #3 is by me):

1. David Kris's "A Guide to the New FISA Bill", Part I, Part II and Part III.
2. Wes Walls' "Understanding Recent Changes to FISA -- A Visual Guide (Flowchart)"
3. Jim Burrows' "I think I understand the FISA bill. Do I?" (at Blogspot. Also on Daily Kos, LiveJournal, MySpace, and Vox)
4. Wes Walls' "FISA Revisited"
5. Paul Russell's three-part "Figuring Out FISA"
1. Part I - A Guy Named George
2. Part II - The Unitary Executive Strikes Back
3. Part III - The Pride of Rube Goldberg