I’m still pondering my options for this fall, in the wake of nascent dictator Smirk’s signing of H.R. 6304, which immunized the phone companies for their outstanding wiretapping of the last seven years, and the granting of widespread new spying powers to the executive branch.

In the final stretch leading up to this week’s shameful bowing by the Senate to the emperor Smirk, a coalition was formed between liberal bloggers, progressive leaders, and libertarians, including Ron Paul supporters. These Strange Bedfellows are working to defend our civil liberties. I say all the more power to them. Speaking of libertarians, Bob Barr, the former Republican congressman from Georgia, has been rather outspoken lately on civil liberties, especially FISA. Seems he agrees it’s a bad idea. I was never a fan of Barr, but I think I’ll have to check him out. He seems to be among a handful of politicians these days who actually care about the Constitution and the rule of law.

In the meantime, I’m not the only one who’s planning to vote for a third-party candidate, or considering renouncing support for Obama. Kevin Hayden at American Street has made it clear he doesn’t plan to vote for Obama; Richard Blair has also outlined why he is not casting his ballot for the Senator from Illinois.

A number of people will hold their noses and vote for Obama anyway, and I’m glad they are– they’re voting from the power of their convictions. But just as they have the right to vote however they choose, so I have the right to determine my own candidate. A lot of arguments I’ve seen so far for continuing to vote for Obama are made in the throes of passion, with very little logic attached, or they ring hollow (”The Supreme Court!” My thoughts? “Where were the Democrats on Roberts and Alito? Where was Obama on those two?”). I think this country is on the road to hell, and we’re going there either way– Obama’s path is just a bit slower and more drawn-out than McCain’s, in my opinion.

We’ll see what happens…

On Election Day, I vote for the candidates that I feel have earned my vote. Not just for those that I like, or those that I tolerate, but those who genuinely deserve my vote. Sometimes I think people in this country take the right to vote for granted: it’s a very central liberty among the civil liberties we enjoy in this country. If you don’t think so, I invite you to read up on what’s happening in Zimbabwe.

I generally am not a litmus-test voter; I consider a broad range of issues, and can be pragmatic on a number of them, when I evaluate a candidate. However, there are some subjects that I’m not willing to compromise. Civil liberties in general tops that list.

As you know, I’ve blogged extensively on the FISA bill, which looks like it’s going to be passed by Congress tomorrow; my latest post was just this Sunday. This bill is atrocious for a number of reasons; you can click on any of the links in my last post to get a sense of just how bad it is. A number of liberal/progressive individuals and groups collaborated financially to put an ad in The Washington Post today– you can see the ad here. While the ad is a bit text-heavy, it summarizes the issue pretty well, I think.

So what does voting have to do with all this, you ask? Well, although the conventions haven’t taken place yet, both of the two major parties are ready to anoint their candidates: John McCain and Barack Obama. McCain, for all his talk about being a “maverick,” is clearly and firmly in the Republican camp, and I won’t vote for him.

I don’t normally share who I vote for, or which candidates I like. I will say that during the primaries, I was not really enthused by any of the “front-runners,” and my sympathies lay with those who had been preordained by the Corporate Media as “not having a chance.” [note to Corporate Media: they “don’t have a chance” in part because you have excluded them from meaningful coverage, debates, and the like. This is a disservice to voters and the public.]

Now the Democrat’s presumptive candidate [assuming that nothing happens during the convention] is Barack Obama. I’d already pegged him as a “centrist” at best, although I admitted he had a silver tongue. I’d first noticed this way back during the 2004 convention, when he gave a keynote speech. At the time, I was blown away by his rhetoric, and remarked to myself that if we ever had a black president, it’d be him. Now that my prediction is verging on reality, I continue to note his great speaking abilities.

But rhetoric doesn’t do it for me: action does. Anyone can talk the talk, but I’m more interested in those who walk the walk. So far Obama’s walking skills aren’t matching his talk. On FISA, it’s been very disturbing. Last fall, during the primaries, one of his representatives let it be known that “[t]o be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies.” This was followed up by a December 17, 2007 statement released by his office that stated that “Senator Obama unequivocally opposes giving retroactive immunity to telecommunications companies…”

Funny what a politician will say during the primaries. Here we are, about to grant retroactive immunity to the telecoms, about to let Dictator President Bush and his cronies gummint off the hook for breaking the law, about to make it easier for the gummint to spy on folks at home– and Obama is nowhere to be seen. Oh, sure, he made a couple statements here and there– including this widely reprinted statement a couple weeks ago. But he hasn’t come forward to lead on this issue. He has apparently not bothered to lift a finger when the bill sailed through the House of Representatives recently. I certainly haven’t seen or heard of him using that silver tongue to support Senators Feingold and Dodd in their last stand against this bill.

I’m sorry; I can be pragmatic about a lot of other issues that Obama’s talked about. I can say, “Well, that’s politics.” But on this topic, no. Here’s part of why I’m so against this:

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. 

This is the Fourth Amendment to the United States Constitution. Warrantless wiretapping, indiscriminate widespread collection of all communications, and similar eavesdropping on U.S. citizens is against the law– or at least it was against the law. As a former Con law professor, Obama should know the issues involved here through and through, and know what is at stake with this legislation. The fact that he is willing to let this bill pass (oh, he’ll vote “no” at all the right times, but he won’t vote “no” when it counts, or take a public stand against FISA.) and essentially give in to an unpopular president who has worked hard to undermine our civil liberties speaks volumes. Now is the time to walk the walk, and Obama’s in bed, and his feet aren’t even on the ground.

So what do I do this fall? Do I violate my principles and enable Obama by voting for him? If I do that, it’s a vote that says, “I’m ok with your gutting the Fourth Amendment.” Obama has to earn my vote– why should I let him get away with this?

Do I stand by my principles and not vote for him? Yes, I know I live in a state that is thus far predicted to go for Obama, so it’s relatively “safe” to not vote for him, but it will lower the popular vote. The final count for the popular vote, in this post-2000 era, means a lot more to people in some ways than the electoral college tally does.

I know some people will argue, “No vote for Obama is a vote for McCain.” No, it’s not– no vote for Obama is no vote for Obama– I won’t be voting for McCain. No vote for either one is a vote of no confidence (which is an option I wish was on the ballot!).

I know others will argue, “Obama is all that’s left between us and a radically right-wing Supreme Court.” That may be the case, but Alito and Roberts were appointed to the Supreme Court and sailed through their confirmation hearings at a time when the Democrats certainly had the opportunity to block them. Nope, that argument doesn’t wash with me.

So– come November, it’ll be a dilemma. I’ll certainly vote down ballot, especially with the mean-spirited initiative against gay marriage up for voter consideration. An easy “no” vote there. But will I pick someone to be the President of the United States? For the first time ever in my voting history, it’s doubtful.

If you have any thoughts on this dilemma, please share. I may not agree with your points, but I’ll certainly listen.

If someone is arrested on suspicion of a crime, what do you do?

Do you:

a) investigate, gather all the facts, then let the law take its course, with the hope and belief that justice prevails?

b) investigate, gather all the facts, then release them with a stern warning, and plan to convict and imprison them next time?

c) do absolutely no investigation, gather no facts whatsoever, and grant them immunity for whatever they’ve been arrested for, before the facts are even known?

Most people like me opt for “a”. On Tuesday, July 8, 2008, Congress is poised to act on option “c” on a bill that will have reverberations for decades to come. On June 20, The House of Representatives rolled over, and in a 293-129 vote, approved the FISA Amendments Act of 2008. The Senate is taking up this amendment in just a matter of hours from now. This bill contains option “c”– it will grant retroactive immunity to our telecommunications companies (AT&T and Verizon among them) in dozens of lawsuits that allege that these companies aided our gummint in conducting a warrantless spying system on American citizens. This spying didn’t occur just in the wake of 9/11; the program was developed BEFORE 9/11 even happened.

These actions by the telecoms and by our gummint are in violation of FISA, which was enacted in the wake of the Church Committee’s findings on wiretapping abuses conducted by the government against its own people. Even though the President admitted to breaking the law in 2005, and even though the telecoms are being sued, Congress is poised to let the telecoms permanently off the hook, and so far has failed to hold any of our government officials accountable for any lawbreaking.

I have blogged quite a few times about FISA, as many of my readers know; you can see some of my past posts here, here, here, and here. I continue to do so because even though I am a political animal, and partisan to a large extent, above all I cherish the U.S. Constitution and our civil liberties. To me, these freedoms trump just about every other issue there is.

Over 230 years ago, our forefathers declared independence from their parent nation; after independence was won, these same leaders debated long and hard about how to structure our new nation. The safeguards they instituted, the system of checks and balances, were inserted in the document they drew up: our constitution. Further wrangling led to the first ten amendments, collectively known as the Bill of Rights.

The constitution and those first ten amendments are what constitutes America. Our growth, our development, our destiny since then is owed to the structure provided within this document. If you remove these rights, if you desecrate and ignore the checks and balances, then you no longer have the United States of America. You still have a nation, yes; you still have an entity known politically as “the United States of America.” But the America that began in the summer of 1776, that declared its independence in Paris in 1783, that enshrined its freedom(s) in 1787: that America will not exist.

Over the decades, this country has flirted, dangerously at times, with irrevocable changes. The Civil War constituted one pivotal crisis; the Great Depression was another such period (if FDR hadn’t instituted the reforms he did (regardless of their success), it’s very possible the country we live in would not be the one we recognize today). I submit we are now in another such moment, and this bill is a visible symptom of that change.

I am not the most persuasive writer, nor the most eloquent one. However, I’d like to direct your attention to a few articles and posts elsewhere on the web:

* Mark Klein, now retired from AT&T, witnessed the surveillance being carried out. He terms the pending FISA bill as laying “the infrastructure for a police state.”

* Over at Slate, Patrick Radden Keefe outlines why the FISA bill is a horrible idea.

* Kevin Bankston at Electronic Frontier Foundation also joins Keefe in exploring the myths surrounding FISA.

* Senator Chris Dodd, among only a handful of lawmakers who have actively stepped up against warrantless wiretapping, gave an outstanding speech on the subject last month. You should read the speech in full, but here’s a pertinent quote or two:

“Secretly and without a warrant, those corporations are alleged to have spied on their own customers – American customers.

Here’s only one of the most egregious examples. According to the Electronic Frontier Foundation:

Clear, first-hand whistleblower documentary evidence [states]…that for year on end every e-mail, every text message, and every phone call carried over the massive fiber-optic links of sixteen separate companies routed through AT&T’s Internet hub in San Francisco—hundreds of millions of private, domestic communications—have been…copied in their entirety by AT&T and knowingly diverted wholesale by means of multiple “splitters” into a secret room controlled exclusively by the NSA.” [bold emphasis is mine, not Dodd’s]

Later in his speech, Dodd quotes the findings of the Church Commission:

“The Church Committee’s final report, “Intelligence Activities and the Rights of Americans,” put the case powerfully:

The critical question before the Committee was to determine how the fundamental liberties of the people can be maintained in the course of the Government’s effort to protect their security.

The delicate balance between these basic goals of our system of government is often difficult to strike, but it can, and must, be achieved.

We reject the view that the traditional American principles of justice and fair play have no place in our struggle against the enemies of freedom. Moreover, our investigation has established that the targets of intelligence activity have ranged far beyond persons who could properly be characterized as enemies of freedom….

We have seen segments of our Government, in their attitudes and action, adopt tactics unworthy of a democracy, and occasionally reminiscent of the tactics of totalitarian regimes.

We have seen a consistent pattern in which programs initiated with limited goals, such as preventing criminal violence or identifying foreign spies, were expanded to what witnesses characterized as “vacuum cleaners,” sweeping in information about lawful activities of American citizens.”

As Dodd then noted, the Church Committee’s statements above could have been written yesterday. Rather chilling, really.

* Last but not least, one of the best writers on this subject, Glenn Greenwald, has been holding court over at Salon, where he has written several outstanding posts on FISA and its potential consequences should it pass Congress. Although all of his posts from the last three weeks are worth reading, I’m linking to this one. It’s Greenwald’s rebuttal to Obama advisor Greg Craig over Obama’s stance on FISA. Currently, Obama is for the FISA bill, claims he will “try” to strip immunity out of the bill, and did not lift a finger when this bill came up in the House of Representatives, despite his de facto status as leader of the Democratic Party. Obama’s name is mud in my book. More on that later.

Shorter version of the above: do you want to be spied upon? Is it okay with you to have your friends, family, neighbors and acquaintances spied upon without their knowledge? Can you trust an administration that brought you a war in Iraq based on lies, a botched response to Hurricane Katrina, a partisan politicization of the Department of Justice, and outed a CIA agent solely for the purpose of political revenge? Because this is what it comes down to: letting the President who brought you all of the above off the hook, and letting the phone companies off the hook too.

My answer is easy: it’s “No.” If that’s your answer as well, call your U.S. Senators today. Call Barack Obama. E-mail them. Send them faxes. Tell them you do not want our nation to start down a path that leads to a surveillance state. If you don’t think it can happen here, well– it can. It will.

Just the other day, I was despairing for our nation, its history, and most of all, its constitutional principles. I’d felt for many years that one commonality that the people of this country had was a deep abiding protectiveness of our constitution and the rights it espoused. But the last several years worried me to the point of fear– not fear of terrorists, not fear of foreign enemies, of fifth columns– but fear of ourselves. Despite FDR’s famous proclamation, “The only thing we have to fear is fear itself,” I feared that the people of this country were willing to let a mighty nation sink into a morass from which it could not rescue itself.

I’m now cautiously hopeful that perhaps we haven’t reached that day yet– that just maybe we have leaders who understand, if only a little, what an extraordinary legacy our forefathers left us, and why it’s so important not to destroy it. On Wednesday, the House of Representatives did not cave in to Smirk and his corporate cronies by capitulating on the disingenuously named Protect America Act (PAA), which would have granted the telecoms immunity for their “alleged” cooperation in allowing our gummint to snoop on whoever they wanted monitor communications. Bear in mind that AT&T isn’t just about phone calls anymore; it’s also about internet service these days as well, which means it doesn’t matter whether you’re old or young, deaf or hearing, black or white– the gummint isn’t going to discriminate among different groups; it’s just going to cast a wide net, period.

Instead of following the Senate and just handing the White House whatever it wanted, the House rightly rejected the renewal of the PAA. The main bone of contention between the Senate and House bills is that the Senate more or less agreed that the telecoms and the executive branch could do whatever they pleased; the House, on the other hand, thinks that maybe people’s civil liberties should be preserved, and people who break the law (read: the telecoms) shouldn’t be given a free pass.

Smirk of course didn’t like being told that, so he cajoled and threatened all day Thursday and Friday, but the House left town without renewing the bill. Now we’re being told that we’re all in danger (funny how every time we’re being told to fear something or that we’re in danger, it’s when the administration is either potentially in lots of trouble or they didn’t get their way. Kind of how little kids act, really… anyone remember color-coded terror alerts? Does anyone know if we’re at “yellow” these days?), but when you think about it, it’s really a bluff.

For one thing, as I noted last month, the “patriotic” phone companies only let their patriotism go so far; once the bottom line was being threatened, they cut off gummint snooping until the bills were paid up. Guess they aren’t too worried about “imminent attacks,” are they?

Just in case you think this is all a bunch of hot air over nothing, let’s look at what Senator Ted Kennedy (D-MA) had to say about all this the other day:

Let’s not forget why we are even talking about this issue.  At some point in 2001, the Bush Administration began a massive program of warrantless spying.  New reports suggest that the Administration began its warrantless spying even before 9/11.  The Administration never told Congress what it was doing.  In clear violation of the FISA law and in complete disdain for the 4th Amendment, it also never told the FISA court what it was doing.

Because the Bush Administration secretly ignored the law, we still do not know how deeply this program invaded the privacy of millions of innocent Americans.  The push for immunity by this Administration is a push to avoid all accountability for a wiretapping program that was a massive violation of the law.

Gee, our gummint didn’t bother to tell Congress about what was going on? The Fourth Amendment too. Say, isn’t that the one about “unreasonable searches”…? Something about “warrants” and “probable cause” too. Isn’t that pesky?

Kennedy goes on to add:

Think about what we’ve been hearing from the White House in this debate.  The President has said that American lives will be sacrificed if Congress does not change FISA.  But he has also said that he will veto any FISA bill that does not grant retroactive immunity.  No immunity, no new FISA bill.  So if we take the President at his word, he is willing to let Americans die to protect the phone companies.  The President’s insistence on immunity as a precondition for any FISA reform is yet another example of his disrespect for honest dialogue and for the rule of law.

It’s painfully clear what the President’s request for retroactive immunity is really about.  It’s a self-serving attempt to avoid legal and political accountability and keep the American public in the dark about this whole shameful episode…

This is what it’s really all about. It’s about a president who’s broken the law, co-opted the telcoms to break the law along with him, and is now trying to cover his ass and the asses of the corporate hacks he pals around with.

As for FISA, it’s still in existence. Nothing has changed– we are not suddenly going to lose the ability to spy at all– it’s just that the executives who cared more about money are going to have to perhaps face the music instead of getting away scot-free for breaking federal laws.

That’s the real issue here, and Glenn Greenwald, in another great post, excerpts and highlights Michael McConnell’s (no, not a certain “pundit”!) admission of what it’s really all about: “However, that’s not the real issue. The issue is liability protection for the private sector.”

In other words, it’s all about Cover Your Ass (and your political donors’ asses).

Congressman Silvestre Reyes (D-TX) also had quite a bit to add. His entire letter is worth reading, but I’ll just include this bit here:

The issue of telecom liability should be carefully considered based on a full review of the documents that your Administration withheld from Congress for eight months.  However, it is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago.

“…a full review of the documents that your Administration withheld from Congress for eight months…” Hmm… whatever happened to cooperation between the different branches in our gummint? Sounds more like a power grab, increased unchecked power, and a blatant disregard for the laws of this nation, doesn’t it?

So I’m hoping that the new pair our Representatives seem to have grown aren’t just temporary ones, a “good for one day only” deal. I’m hoping that finally Congress will reassert itself and restore some semblance of balance, and finally demand some accountability. Yep, I’m cautiously hopeful…