Ideas for Change: should Get FISA Right endorse the “special prosecutor” idea?

Over the weekend, Bob Fertik proposed the idea of a “Constitutional slate” of Ideas for Change in America, including his Appoint a Special Prosecutor for the Crimes of the Bush Administration as well as our Get FISA Right, repeal the PATRIOT Act, and restore our civil liberties and Pierre Loiselle’s Repeal the Patriot Act.

Does Get FISA Right want to take the first steps towards this by endorsing Bob’s idea?

When the topic of investigating the Bush Administration came up on one of our phone calls in December, there was a mix of opinions.   One underlying concern, even among some people who are in favor of a special prosecutor, is whether this is outside our charter — which is currently focused on FISA (although there’s broad support for broadening it).   We also agreed that Get FISA Right is focused on the future, not revenge for the past.  Lloyd brought up some other concerns in a comment on the other thread:

How can you link up this genteel “Please Get FISA Right” effort with one calling for a Special Prosecutor for Crimes of the Bush Administration,” which has nothing to do with Government Reform and would set a tone for divisiveness and gridlock?

On the other hand, one of our key messages for the future is restoring the rule of law, and it’s hard to see how that happens without accountability.   And there’s also an argument to be made that additional investigations that help reveal the facts about wiretapping will lead to broader opposition to FISA.  There’s clearly a lot to be gained by joining forces here: many progressive, libertarian, and radical activists, bloggers, and journalists are likely to support both.  So I can see arguments both ways …

What do others think?  Please weigh in here, and we’ll also discuss it on Tuesday’s conference call.


PS: as a disclaimer, I personally support Bob’s idea, and speaking for myself have endorsed it as well as several others.   However, Get FISA Right’s perspective is very different from mine as an individual, and so it’s something we should discuss as a group.


21 Responses to Ideas for Change: should Get FISA Right endorse the “special prosecutor” idea?

  1. Laird Free says:

    I believe a Special Prosecutor for the Crimes of the Bush Administration would be bogged down in the multitude of possible crimes, the sheer number and complexity of which would bury and overshadow any potential “additional investigations that help reveal the facts about wiretapping [which] will lead to broader opposition to FISA”. I like the idea in theory, but fear the reality will provide few results directly concerning the Get FISA Right group.
    I believe that building momentum behind the Repeal of the Patriot Act would be a better choice due to the broader range of issues shared between FISA and the Patriot Act.

  2. Rod Stoick says:

    I too share a belief in consequences for illegal behavior. Get FISA Right, to me, implies we change/amend the earlier congressional vote to bring it in line with our Constitution, as well as holding the perpetrators responsible. In the study of Power, children and leaders will both have a propensity to act out if not given consequences for inappropriate actions. Each must know where the limits are and that crossing them leaves them open to redress from those offended. If we let this administration get away with this, we’ll be re-writing the history of this period in American politics. The quelled investigation against the fascist conspiracy to remove FDR that Gen. Smedly Butler outed in the 30’s should be warning enough. Our collective denial and political protection of infamous, immoral, and illegal actions diminishes us in the eyes of ourselves and the world – neither of which we need at this time. We have an opportunity now to amend our wrongs…sometimes I think everyone should be in a 12-Step Program.

  3. Victor says:


    Issues like the FISA Amendment Act, the PATRIOT Act and other civil liberty restrictions all fall under the umbrella of Constitutional and civil law. If other groups working to repeal the PATRIOT Act or restore Constitutional protections would like to join forces with us, we should welcome them with open arms. Likewise, if there’s a better-organized group advocating for Constitutional rights, we should approach them with the goal of joining forces with them.

    One solid bloc of activists, bloggers, opinion-makers and voters presenting a unified message of restoring Constitutional rights and protections can make a more persuasive argument than a fragmented group can.

    On the other hand, incorporating disparate ideas into a single group would dilute, not enhance, the message we’re spreading.

    A special prosecutor/”truth commission” is a worthwhile idea, but it’s a worthwhile idea in a different category. The Constitutional issues we’re trying to address will ultimately need their own Congressional (sub)committee, listening to arguments pro and con from Constitutional and civil rights lawyers and scholars.

    A second reason against joining up with the special prosecutor’s group is that Constitutional issues like GFR are bi-partisan… actually, they’re non-partisan, and can easily appeal to all points along the political spectrum. A special prosecutor will almost automatically raise cries of witch hunts and demagoguery, blatant partisan politicking and politics-as-usual divisiveness. That’s not necessarily the best way to get our message across.

    I would vote no on including the GFR message with the special prosecutor’s message.


  4. Robert Vogel says:

    A general review of the actions of the Bush administration would be a good first step toward a reform movement. That should include a new evaluation of 9/11.

    We should have standardized, secure, auditable, open-source, election procedures so that their can be restored public trust in election integrity.

    There should be a re-examination of covert agencies to be sure that they become open to public scrutiny. They have started a number of wars since World War II, and the Congress had nothing to say about it. They have taken war powers from the Congress in spite of the Constitution.

    Public finances have become pretty much unauditable, particularly in the Defense Department.

    Homeland Security procedures are clearly out of hand. Airport security leaves us NO fourth amendment rights. The ‘no-fly’ list is secret and unaccountable.

    Wiretapping was grounds for impeachment for Nixon, but now seems to be regular procedure. FISA court oversight should be thorough and mandatory.

    The Bush Administration was responsible for war crimes. A special prosecutor certainly is needed.

    The Constitution should clarify that the President is not above the law.
    Since the Supreme Court is newly packed with Neocons, they may decide differently and we will have a dictator.

    Other ideas for reform are at

  5. Alan Carlson says:

    I agree with Victor’s comments about the strengths of joining forces with other Constitutional restoration groups, but come to the opposite of his conclusion and think that this unified approach would strengthen rather than dilute the GFR message.

  6. Joan Mokray says:

    All comments have been particularly thought-provoking. If bringing together different groups to focus on restoring the rule of law under our Constitution is something we can help coordinate at this juncture, then we should. Having a news conference that paints a broader picture of concern for our founding principles is stronger than whether or not a particular position (Get FISA Right) remains pure. We want people to be galvanized around the Constitution. Let’s join forces. We can always split hairs later. THere are definitely questions about investigating past crimes, but having the Constitution be the clear winner at this juncture is without doubt.

  7. Frank says:

    Jon, I remain adamant that we say focused on the future or perhaps said another way; the things Obama can reverse via execute orders. I believe if we can bring public pressure to bear on those items, we’ll have made a major accomplishment.

    The mess that the Bush administration created over 8 years will have to be sorted into crimes and misdemeanors and then the shit he pulled, like warrantless wire tapping, under his expanded Unitary executive authority. The later I believe can be diminished simply by Obama’s not using it!

    So let’s keep the pressure on him to GetFisaRight by not subscribing to warrantless wire tapping. Period.

    There seem to be many other efforts to deal with Bush’s ‘criminal’ past!

    my .02c

  8. Greg says:

    I don’t see the two as overlapping, personally. Get FISA Right, the way I view/viewed it, is about getting a FISA vote that is “right.” It is not about retribution or punishing those who got it wrong. It is not about investigating… well… anything. It’s about FISA and getting it right. As individuals it’s a different matter. As a “brand” though… it doesn’t make sense to me to go there.

  9. […] Get FISA Right Please say no to telecom immunity and get FISA right in 2009 « Ideas for Change: should Get FISA Right endorse the “special prosecutor” idea? […]

  10. Amy Harlib says:

    If Congress refuses to hold the Executive Branch accountable for its multiple abuses of power, the next
    Administration will know it has nothing to fear from Congressional oversight. More war, more abuse of power,
    more erosion of our civil rights and our civil liberties are the inevitable consequences of an unchecked
    Executive. Congress must reassert itself to restore a functioning balance of power. That can only be done by
    holding impeachment/indictment hearings.

    ■ IRAQ: Bush Administration officials have collectively told hundreds of lies about the run-up to our invasion
    of Iraq, as anyone who’s done any reading over the last 5 years knows. If this is not gross abuse of power,
    nothing is.

    ■ ILLEGAL SPYING ON AMERICAN CITIZENS: Whatever changes Congress makes now to FISA, it
    was illegal for the Bush Administration to conduct surveillance of American citizens without a warrant. They
    did this for years.

    ■ TORTURE: Before the passing of the Military Commissions Act, torture was illegal in this country. The torture
    and illegal treatment of prisoners authorized by the Bush Administration violated international treaties

    such as the Geneva Conventions, thereby violating US law.

    ■ SEPARATION OF POWERS: The Bush Administration’s outrageous abuse of signing statements amounts
    to giving the Executive a line item veto over legislation passed by Congress. The firing of the U.S. Attorneys is a
    graphic example of the Administration’s politicization of the Judiciary. Congress must act to protect and reassert
    the balance of power.

    ■ NO ONE IS ABOVE THE LAW. This is nonpartisan. If anything, it is the highest form of conservatism—
    respect for the rule of law. It’s up to the Congress to demand true accountability, and that means holding
    impeachment hearings now.

    ■ DON’T BELIEVE THE HYPE—IT’S NOT TOO LATE. It’s only too late if citizens like us give up on
    our country.

  11. Joe says:

    I’m all for it.

  12. Nina Harlan Kohl says:

    Hi Jon,

    I say, yes, endorse. In my opinion, once Cheney confessed to authorizing torture on national television we crossed the Rubicon. Prosecution can no longer be off the table. Backing off because we are concerned about “divisiveness” is simply no longer an option.

    Also, on a practical note, I believe that if we want our movement for restoring the rule of law to expand and involve the average American, we need to unite and speak with one, big loud voice. This internal division into “past vs. future” issues doesn’t help us gain traction with the American people. (For what it’s worth, I noticed that the “special prosecutor” group seemed to grow faster than the “rule of law” group. I think this may be because the average American doesn’t know what “the rule of law” means or what FISA is. However, the average American understands crimes and prosecutions — that, they get.)

    Thanks so much for all the work you’re doing, Jon!

  13. Ben Masel says:

    Given that the likes of Feinstein, Mikulski, and Rockefeller are deeply committed to a regime of continuing surveillance, and the Administration will at best only back small reforms, we’re not going to pass comprehensive reform of PATRIOT and FISAAA.

    Without their guy at the switch, finding some Republican Senators willing to help is not impossible. Standing outside the entrance to last summer’s Republican Convention with a “STOP GOVERNMENT SPYING” sign, I got nearly the same percentage of positive comment as I had at the Democratic Convention in Denver. 81 in St. Paul accepted, and put on, Privacy ’08 buttons before entering the hall.

  14. Beverlee Bruce says:

    Jon, et. al.

    I am all for collaboration and support including issues related to FISA and the repeal of the PATRIOT Act in the context of a Special Prosecutor. We cannot move forward without addressing the grave assault on our civil liberties as enshrined in the Consitutions, which has been torn to shreds and with impunity. Transparency and Accountability as we go forward have to be the order of the day. We can continue being genteel in our approach. There is no need to become divisive, just resolute and with a Special Prosecutor who has a clear mandate, clarity, not gridlock will be the result. Folks are not prepared to let these perpretrators walk free, and why should they? Let them have their day in Court and let the chips fall where they may.

  15. Ben Masel says:

    Statute of limitation for criminal prosecution under the Wiretap Act runs 4 years . I’m thinking the key period dates from the non-certification in the Ashcroft/Comey hospital caper, so any indictments would have to be filed by March.

  16. jonpincus says:

    From Victoria in email (cut-and-paste with her permission):

    In my opinion, voting for #2 is more important than voting for # 1
    Jon (See below William). If they are going to “fix” the FISA,
    Patriot Act problem, then they have to investigate and recognize that
    crimes may have been committed by Democrats. They must be prosecuted
    for the crimes.

    Yes, everyone PLEASE vote for the special prosecutor. I have new
    hope (not a lot) that Obama knows he has to do the
    investigation. I’m still working with the National Impeachment
    Network (NIN). They will die trying to get someone to do something,
    but I think it’s too late for impeachment because the Democratic
    “leadership” is corrupt. As I mentioned before, I wrote and filed an
    ethics complaint against Pelosi. I haven’t heard anything yet from
    the Committee on Standards. However, I do know that they received it
    because I had it delivered a few minutes before they closed their
    office on September 3, 2008. Sigh…

    I am hopeful. Did you read this diary? If not, please do it:

    Jon, contact William Crain about getting some kind of coordination
    here. His e-mail is: “William Crain”

  17. jonpincus says:

    I think Ben’s made an excellent point about how we’ll need Republican support for any kind of reform.

    We discussed this some on the conference call last night and will get some notes up soon (I’m offline for most of today so it might not be for a while).

  18. John Farbstein says:

    I think that this group should endorse Fertik’s Special Prosecutor plan.

  19. […] the discussion: endorse the special prosecutor? By jonpincus It’s been a spirited discussion so far on whether or not Get FISA Right should endorse the Bob Fertik’s idea Appoint a Special […]

  20. Harry Waisbren says:

    I do not see how anyone can separate a “focus on the future” from accountability at this point.

    It is very clean and nice to say “well, let’s be positive and just stop the warrantless wiretapping”, but there are two reasons why a special prosecutor and accountability are essential:

    1. If we do not know what they are doing with the wiretapping program, how can we know if they have stopped it?

    2. If there is no accountability, what is to stop another president from ignoring the law again?

    Our focus on the future should be about achieving actual accountability through a special prosecutor and then convening something similar to a Church Committee to actually investigate what really happened. It is easy to forget that because the investigations were shut down we still do not know the extent of what occurred with the warrantless wiretapping program, and if we do not know where we are at in the present how can we possibly focus on the future? This also comes in combination with the reality that laws were merely ignored, so even if there are new laws to stop warrantless wiretapping there also need to be impediments to ensure those laws themselves are not ignored in the future as well. If there is no accountability this time, there will be no assurance that these laws to be followed in the future.

  21. Bruce Williams says:

    The short version of criminal prosecutions idea is it should happen, but it won’t.

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