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Before the House Folds
Yesterday, by a vote of 68 to 29, the Senate approved the surveillance bill favored by the White House, which extends the powers granted by the Protect America Act and gives telecommunications companies retroactive immunity from liability for assisting the National Security Agency with its illegal warrantless eavesdropping program. The House version of the bill, which includes more judicial oversight and leaves out the retroactive immunity, still needs to be reconciled with the Senate version. Here are a couple of questions the House should consider before going along:
1. Why is retroactive immunity necessary to guarantee future cooperation? In a press release I just received, the White House insists "this provision is critical to ensuring the future cooperation of electronic communication service providers." It seems like immunity for future assistance, which the carriers already have, should do the trick. If the real concern is that the telecommunications companies should not be punished for cooperating with a program the administration assured them was legal, that's precisely the sort of issue that should be litigated, especially since testing that defense would highlight the administration's dishonesty and lawlessness.
2. If the government should not have to bear the inconvenience of obtaining a warrant to monitor the communications of suspected terrorists simply because the targets are talking to people in the United States, why should it need a warrant simply because the targets themselves happen to be in the United States? The emergency, wartime logic that permits warrantless surveillance of foreign-to-domestic telephone calls and email messages applies equally to communications that are entirely domestic. A future administration is apt to demand that Congress further amend the Foreign Intelligence Surveillance Act to make its treatment of anti-terrorist eavesdropping consistent.
You can find recent reason coverage of the surveillance debate here and here.
|2.13.08 @ 3:08PM|#
I would imagine that unconventional forms of communication are
being used to thwart the surveillance, by those who are worried
about the government snooping.
Messages imbeded in open transmissions, dummy and decoy orders,
personal contact, war drums, etc.
Of course, those of us who are just living our lives are not
worried, because the government would never want to keep tabs on
little ol' us, now would they?
/obligatory snarky rhetorical question tag
Fluffy|2.13.08 @ 3:15PM|#
Immunity for past illegal assistance is needed to ensure
cooperation with future illegal requests.
It's not about making sure they can comply with legal requests in
the future. It's about making sure they comply with illegal
ones.
The laws of our Republic are now mere propaganda. Remember the
original reason the administration gave for not updating FISA in
the first place: they wanted a law in place saying they wouldn't
conduct certain types of surveillance, so that the targets of that
surveillance would rely on that law and be easier targets for
illegal surveillance. In other words, the administration has openly
admitted for some time that the purpose of the law is to
deceive.
Since the law is not meant to be law, but to make it easier to
deceive, naturally the administration doesn't want the telecom
companies punished. To them, there was no wrongdoing here because
the law itself was a lie.
|2.13.08 @ 3:19PM|#
Senator Barack Obama of Illinois and Senator Hillary Rodham
Clinton of New York, did not vote. Mr. Obama did oppose immunity on
a key earlier motion to end debate. Mrs. Clinton, campaigning in
Texas, issued a statement saying she would have voted to oppose the
final measure.
The audacity of abstention!
|2.13.08 @ 3:26PM|#
There is no need for immunity, as I understand it, so long as the order from the government is legal. However....
|2.13.08 @ 3:26PM|#
The audacity of rope-a-dope! It takes a village to ignore your
civil liberties! Of course, McCain is certainly on the wrong side
of this.
This is why we shouldn't vote for Ron Paul, right?
Before anyone rushes to the defense of this type of surveillance,
it's the rule of law and accountability that I'm upset about, more
than what form our surveillance takes.
|2.13.08 @ 3:28PM|#
There is no need for immunity, as I understand it, so long
as the order from the government is legal.
I believe it also had to be in writing and approved by DOJ or the
AG.
Something tells me this didn't happen.
Carol|2.13.08 @ 3:29PM|#
I can't help but side with the Telecoms on this one. The folks calling for their heads are just rabid partisan rabble-rousers.
|2.13.08 @ 3:30PM|#
Before anyone rushes to the defense of this type of
surveillance, it's the rule of law and accountability that I'm
upset about, more than what form our surveillance takes.
Exactly.
The message here is clear. The law only applies to some people
(suckers like Qwest).
It doesn't apply to those who are willing to take the government's
word or not question the governments actions.
|2.13.08 @ 3:31PM|#
Fluffy,
I don't remember the admdinistration arguing that bit of logic,
though it sounds like them. Where did you get that?
|2.13.08 @ 3:32PM|#
Normally I would be inclined to cut the companies some slack. At
least some of this was right after 9/11, and for most people who
don't read Reason, if government guys with badges showed up and
said they needed to monitor overseas calls, I'm sure the people
would think it was okay.
Of course, If I'm recalling this wrong, nevermind. Though I might
still be inclined to give the companies a slap on the wrist. The
administration, OTOH...
|2.13.08 @ 3:32PM|#
Once we have established the precedent for our new rule of law,
"If the President says it's legal, it's legal, goddammit! Now, hop
to it!" we can move on to the next phase; random searches of homes
and businesses [cars have already been covered].
Who knows what potential evildoing can be thwarted by a judicious
use of pre-emptive investigations?
|2.13.08 @ 3:32PM|#
Carol, I think the telecoms should be given immunity, too.
By the Special Prosecutor.
In exchange for their testimony regarding government officials.
|2.13.08 @ 3:33PM|#
The folks calling for their heads are just rabid partisan
rabble-rousers.
Who exactly is calling for anyones head? People are calling for an
investigation to see if there was any wrong-doing, and if the
telecoms lived up to their responsibility.
Why are so many people against investigating and making sure the
law was followed?
|2.13.08 @ 3:34PM|#
I'm not so upset with the telecom companies. Hard to say no when
the feds are making their usual not-so-veiled threats. However, if
they aren't made retroactively immune, this activity has to come
out in the light of day. Well, it does unless some jackass judge
buys the "national security" argument and throws any such suit
out.
I grow tired of this nonsense. Too bad we're going to get more of
it no matter who wins (barring divine intervention, anyway).
|2.13.08 @ 3:38PM|#
At least some of this was right after 9/11,
And a lot/most of it was more than a year after 9/11.
However, if they aren't made retroactively immune, this
activity has to come out in the light of day. Well, it does unless
some jackass judge buys the "national security" argument and throws
any such suit out.
The problem is that if you give the telecoms immunity, that
essentially kills any investigations and judicial oversight.
You go after the executive branch directly and they basically say
"it's all state secrets" and the courts say "Well OK".
Unless you expect me to believe that a judge will find that excuse
invalid.
The Democratic Republican|2.13.08 @ 3:39PM|#
To hell with the telecoms. Quest Communications managed to resist. The activity began before 9/11. And it wasn't just to monitor communications, it was turning over records. Probably everyone's records -- mine and yours and everyone. We ought not to live in a society where everyone is complicit in surveillance, and I do not believe for one moment there was ever an issue of conscience for the companies, only profit at the expense of our privacy.
Carol|2.13.08 @ 3:39PM|#
"Carol, I think the telecoms should be given immunity,
too.
By the Special Prosecutor.
In exchange for their testimony regarding government
officials."
You have a bit of foam oozing out the left side of your
mouth...
|2.13.08 @ 3:44PM|#
You know, maybe our civil liberties are a little more important than chasing around some bad guys, even ones who pose a threat. We didn't openly surrender half of what the administration suggests that we need to today during the Cold War. You know, with the Soviet Union and nuclear weapons and stuff.
|2.13.08 @ 3:46PM|#
In exchange for their testimony regarding government
officials.
Yeah, that'll happen. Especially given President McCain's carefully
considered decision to have his AG go after the government.
*snark*
Carol, joe's right. Those jackboots are seeeeeexy. Aren't they the
same kind Eva Braun wore?
Another Phil|2.13.08 @ 3:47PM|#
You have a bit of foam oozing out the left side of your
mouth...
How is concern about warrantless searches a left-wing partisan
issue?
Carol|2.13.08 @ 3:48PM|#
"You know, maybe our civil liberties are a little more important
than chasing around some bad guys, even ones who pose a
threat."
Please explain, because to be honest, I feel your fears exist
entirely in the abstract. It might be hard for you to accept, but
the government really has no interest in your live beyond your tax
potential. Put the fear away.
Carol|2.13.08 @ 3:49PM|#
"How is concern about warrantless searches a left-wing partisan
issue?"
The Clinton Admin did it. Were you concerned? If so, I'd like to
hear all about it.
|2.13.08 @ 3:50PM|#
Pro,
It was a lot worse in the cold war. Presidents didn't bother to ask
the telecom's permission, they just used the CIA. They didn't do it
to find foreign terrorists; they did it to their political enemies.
The Democrats will get my ear on this issue when they come out and
admit that Johnson and Kennedy were as bad or worse than Nixon and
historically awful Presidents for using the FBI and CIA to listen
in on their political opponents. Until that time, it is just
partisan whining.
Carol|2.13.08 @ 3:55PM|#
"Until that time, it is just partisan whining."
Good answer, John. Good answer!
|2.13.08 @ 3:56PM|#
John,
I wasn't implying that worse didn't happen in the Cold War--it
did--but it was still acknowledged as illegal then. If a
stink had been raised, which did occur from time to time, heads
rolled. Now, we just spin it all away. Gotta watch out for the
bogeyman. Did I violate your civil liberties? It's okay, I did it
for National Security®.
Carol,
Just for the record, I'm a Republican. And Clinton did have a bad
record on this sort of thing, from Clipper to Echelon to
proto-PATRIOT ACT. It's a friggin' snowball, that grows no matter
which party is at the helm of the sled.
|2.13.08 @ 3:57PM|#
"I'll only care about this issue if you say bad things about the party I hate! You...partisans!"
|2.13.08 @ 4:03PM|#
Taktix®,
Of course. I'm just feeling my lost civil liberties extra keenly
today, else I'd do my usual ignoring of the Juanita performance art
(everyone knows it's really thoreau).
Kolohe|2.13.08 @ 4:03PM|#
At least some of this was right after 9/11,
And a lot/most of it was more than a year after 9/11.
And some was *before* 9/11
|2.13.08 @ 4:04PM|#
Carol is a troll or an idiot. Quite possibly both. I'm all for freedom but Carol needs a keeper.
Episiarch|2.13.08 @ 4:05PM|#
I can't decide is Bush and Co. are power-hungry authoritarians
or simply engaging in a massive preemptive ass-covering campaign.
Because I can see them sitting around a table after 9-11 going "if
we get hit like that again our careers and legacies are FUCKED. We
have to do anything, anything that we can get away with, to prevent
it."
Not to save lives, of course, but to avoid getting blamed for not
preventing the next attack.
|2.13.08 @ 4:06PM|#
"I wasn't implying that worse didn't happen in the Cold War--it
did--but it was still acknowledged as illegal then. If a stink had
been raised, which did occur from time to time, heads rolled. Now,
we just spin it all away. Gotta watch out for the bogeyman. Did I
violate your civil liberties? It's okay, I did it for National
Security®."
If they are honestly using it for national security purposes, I
don't have a problem with it. I know you do, but you are definitely
in the minority on that. My fear is that we will have a repeat of
Johnson playing recordings of MLK with his girlfriends at parties
at the Whitehouse. Heads didn't roll back then. Johnson and RFK and
JFK got away with it and Nixon would have had it not been for the
Watergate break-ins. Clinton never suffered anything beyond bad
press on Rush Limbaugh for rummaging through hundreds of FBI
background check files of Republicans.
No President Democrat or Republican is going to stand around and
not listen in if he thinks it will stop a terrorist action. They
are going to do it law or no law. Further, if there ever is another
9-11 or worse, they will just change the law and God help us then.
9-11 produced the Patriot Act. The next 9-11 will produce a lot
more than that. I would rather make it legal under very limited
circumstances and control it.
The Democratic Republican|2.13.08 @ 4:07PM|#
Carol -- I think you mean, the Clinton Administration WILL do it (again). Or the Obama or McCain. Doesn't matter. You can't be a partisan if there's only one side to the coin.
|2.13.08 @ 4:10PM|#
John,
My problem isn't with doing things for national security, it's with
the lack of accountability. Thanks to the dangers once posed by the
U.S.S.R., we have a legacy that the mere statement, "It's national
security, stupid" ends the discussion. The courts and Congress have
ceded much of their oversight and their obligation to check the
executive when national security is invoked. I oppose that, and I'd
oppose it in a situation where we were more threatened than we are
today.
|2.13.08 @ 4:10PM|#
I can't decide is Bush and Co. are power-hungry
authoritarians or simply engaging in a massive preemptive
ass-covering campaign.
Or both?
|2.13.08 @ 4:12PM|#
"""1. Why is retroactive immunity necessary to guarantee future
cooperation?"""
I'm thinking it has to do with the equipment installed. It's
possible the equipment to allow the taps was installed in an
illegal manner and that giving immunity to that act guarantees
future cooperation.
"""It was a lot worse in the cold war. Presidents didn't bother to
ask the telecom's permission, they just used the CIA."""
Maybe in regards to acts, but the amount of information that can be
gathered by tapping the Internet is far greater than anything done
in the past. It's possible for the government to scan millions of
Emails in less time than it took them to open and review a couple
of hundred back in WWII.
Episiarch|2.13.08 @ 4:14PM|#
Thanks, Brian, you jumped on that quickly. In fact, I do think it's both.
|2.13.08 @ 4:14PM|#
If they are honestly using it for national security
purposes, I don't have a problem with it.
And when Hillary says that, John, you will of course believe her.
After all it is classified, and you don't have a
"need to know".
Fuck!* I'm amazed at how people willfully blind themselves.
Pardon my French.
Dirty Frank|2.13.08 @ 4:14PM|#
joe: And you, my dear, look fetching in those
jackboots.
J sub D: Carol needs a keeper.
mmmmm jackboots with a collar and leash, ya say? I'm starting to
like Carol more than I should!
Fluffy|2.13.08 @ 4:15PM|#
Joe:
Glenn Greenwald has written extensively on the shifting
administration rationales for not amending FISA at the outset,
rather than just breaking it.
As you're probably aware, the sheer volume of web material about
FISA can make it difficult to grab a snapshot of the BS being
shovelled on a particular day several years ago.
But on my first Google shot, I was able to come up with General
Hayden of NSA saying that going to Congress for an amendment would
have been problematic because it would reveal methods and
procedures:
http://www.globalsecurity.org/intell/library/news/2006/intell-060123-dni01.htm
Taktix®|2.13.08 @ 4:15PM|#
I do expect a liberal use of the pardon power in about ten
months.
I also expect a lot more bullshit legislation from Lame Duck (thank
Zeus!) Dubya over the next 10 months.
|2.13.08 @ 4:16PM|#
Can anyone explain to me why issuing retroactive immunity to
someone isn't a taking from the plaintiffs who just had their cases
evaporate?
Isn't this legislation unconstitutional as a taking without
compensation?
Just askin'. There's probably some precedent on this topic, I
dunno.
|2.13.08 @ 4:17PM|#
""If they are honestly using it for national security purposes,
"""
Currently, this is impossible for us to know. So it goes to trust.
No one in there right mind can trust this administration. If Bush
is will lie to the public about somthing as simple as Rumsfeld's
departure, you can bet he'll lie when he has a vested
interest.
You probably can't trust the next admin either.
|2.13.08 @ 4:18PM|#
Where the hell was Chris Dodd???
68-29. Sixty seven votes gets you cloture. He could have been
self-flagellating himself in the Senate well, and it wouldn't
matter.
|2.13.08 @ 4:19PM|#
I fear this thread would take a disturbing turn away from
libertarian views if Carol turned out to be Angelina Jolie.
Taktix®,
You think? What's the point, unless he's going to propose stuff
that the Democrats want?
R C Dean,
It's a civil liberties hide-the-salami game.
Fluffy|2.13.08 @ 4:20PM|#
What I can't understand is how Reid retains his Majority Leader
post.
At least half of the Democrat caucus has to hate his fucking guts
at this point. He sells them out every chance he gets.
|2.13.08 @ 4:21PM|#
TrickyVic,
I wouldn't trust a Ron Paul administration, so I certainly
won't trust whichever of the other jokers who wins. What happened
to distrust of government being THE American ideal?
|2.13.08 @ 4:21PM|#
"Currently, this is impossible for us to know"
It doesn't have to be. That is why you have congressional
oversight. Give them the power to listen in on telephone
conversations as long as it is between a foreign national and an
overseas number and is part of a legitimate terror investigation.
Then make them report to Congress every time they use the
provision. Yeah, they could break the law, but they could break any
law. Yes, Congress could shirk their duties. But if Congress and
the executive both do that, we are screwed anyway.
|2.13.08 @ 4:22PM|#
No one in there right mind can trust this
ANY administration.
Personally it has nothing to do with this administration or any
other specific admin.
The problem is that I don't trust any administration to limit their
own abuses of power. Neither did the founding fathers. That's why
have things like oversight, judicial review, checks and balanaces
etc.
for me anyway, this has nothing to do with Bush but everything to
do with the authority of the
|2.13.08 @ 4:24PM|#
Fuck! Hit submit too early...
for me anyway, this has nothing to do with Bush but everything
to do with the authority of the should be...
for me anyway, this has nothing to do with Bush, but everything to
do with keeping a check on the executive and making sure that that
laws apply to to the Executive branch.
We don't have kings in America. An elected officials say so is not
enough. There needs to be judicial and congressional oversight
Episiarch|2.13.08 @ 4:25PM|#
At least half of the Democrat caucus has to hate his fucking
guts at this point. He sells them out every chance he
gets.
Or...they all pay lip service to their base and look forward to
having their own guy/gal with these super executive powers.
Wouldn't that be a more plausible explanation? If he's going
against the wishes of the majority of his party, why is he still
leader?
|2.13.08 @ 4:26PM|#
At least half of the Democrat caucus has to hate his fucking
guts at this point. He sells them out every chance he
gets.
Fluffy, I don't think they do because a large chunk of the
Democratic caucus are conservative Democrats. These are people who
piss their pants at the mere thought of a political opponent
branding them with the dreaded "Liberal" tag.
|2.13.08 @ 4:28PM|#
"The problem is that I don't trust any administration to limit
their own abuses of power. Neither did the founding fathers. That's
why have things like oversight, judicial review, checks and
balanaces etc."
You are right. The question is how to have oversight? There is
nothing to say that our robed overlords in the judiciary are the
only method of oversight. If the FISA system is too cumbersome to
use, then why not use Congress to audit all of the wiretaps that
are done? Courts are ussually rubber stamps for the cops anyway. I
would rather see them have to post facto explain everything they
did than go through the BS dog and pony show that is getting a
warrent.
|2.13.08 @ 4:29PM|#
"""It doesn't have to be. That is why you have congressional
oversight. """
First, As Dr. Phil might ask, How's that working for you?
Second, Bush is not interested in congressional oversight, I don't
think congress is very interested either. Despite where you want to
place fault, I don't think it's a victory for the American way.
|2.13.08 @ 4:30PM|#
Isn't this legislation unconstitutional as a taking without
compensation?
Just askin'. There's probably some precedent on this topic, I
dunno.
R C, well that's an interesting legal theory but I'm sure it
wouldn't work. I don't know if there's a specific precedent on this
narrow takings issue, but it has been a long-held precedent that
you cannot recover damages that are too uncertain, contingent,
speculative, etc. Only damages that are provable with some
"reasonable" certainty are typically allowed. I think that even if
you could get past the property-right in a potential future
judgment (which I suspect you couldn't) issue, the fact that the
amount in question is so speculative the court would refuse any
claim along these lines.
|2.13.08 @ 4:30PM|#
Or...they all pay lip service to their base and look forward
to having their own guy/gal with these super executive
powers.
Or they are all afraid of being branded "weak on terror" or
"traitors" or "coddling terrorists"
The majority of the Dem caucus acts based on fear.
As much as I disagree with large chunks of the GOP platform and
their caucus members, I admire and respect their willingness to
stand for something and push an agenda regardless of how unpopular
it may be with the populace. (SCHIP for example polls very well,
but the GOP isn't afraid to scuttle it) They constantly try and act
from an offensive posture rather than a defensive one.
|2.13.08 @ 4:32PM|#
If the administration asks you to break the law, go ahead and do
it. They'll give you retroactive immunity, EVEN IF THE
OTHER PARTY CONTROLS BOTH HOUSES OF CONGRESS. The precedence has
been set. (It will be shortly, we know it).
Hey baby boomers, this (loss of freedom, serfdom for the masses) is
happening on our watch! Our descendants will revile us fgor having
freedom and ignoring it away.
|2.13.08 @ 4:34PM|#
If the telecoms are worried about liability for acquiescing in
what the Bush Administration requested them to do, why not
indemnify, rather than immunize, past conduct. Let the federal
government stand as insurer for its surrogates' unlawful
conduct.
As Louis Brandeis said, sunlight is the most powerful of all
disinfectants. The administration, as well as the quisling Senate
Democrats in the war on civil liberties, are acting scared shitless
that civil litigation against the telecom providers will turn over
rocks that the bugs have crawled under.
|2.13.08 @ 4:36PM|#
There is nothing to say that our robed overlords in the
judiciary are the only method of oversight. If the FISA system is
too cumbersome to use, then why not use Congress to audit all of
the wiretaps that are done? Courts are ussually rubber stamps for
the cops anyway. I would rather see them have to post facto explain
everything they did than go through the BS dog and pony show that
is getting a warrent.
I could live with this in part.
Although I wonder how Congress can force the Executive to do
anything. I believe the courts have a stronger hand at stopping
things and mandating certaina actions. Congress can pass
legislation, but the executive still has the veto and apparently
the right to only comply with parts of the law it agrees with (see
signing statements )
My biggest beef with letting the Congress be the only oversight is
that many Congress Critters are ignorant of how the law should be
applied. Judges may not be the best, but they do seem to have a far
better grasp of legal and Constitutional matters than
Congress.
Also, many judges don't face the same scrutiny come re-election
time and don't have to pander as much.
In any case though, I could live with what you proposed. As long as
someone is reviewing things in an objective manner and someone has
the power to say "no this is wrong and has to stop"
|2.13.08 @ 4:39PM|#
It's possible for the government to scan millions of Emails
in less time than it took them to open and review a couple of
hundred back in WWII
I didn't know they had e-mails in WWII. I thought Al Gore hadn't
invented the internet yet.
/pedantic snark
|2.13.08 @ 4:40PM|#
Messages imbeded in open transmissions, dummy and decoy
orders, personal contact, war drums, etc.
Or photo messages like Marlo in "The Wire."
|2.13.08 @ 4:41PM|#
"""I would rather see them have to post facto explain everything
they did than go through the BS dog and pony show that is getting a
warrent."""
Sort of like the dog and pony show Gonzales gave to Congress about
the hiring and firing of the USAs. A shitload of I don't remember
and I can't recall. Post facto explaining isn't very good
either.
I agree John, it doesn't have to be this way, and there can be good
oversight if truly desired. But I have my doubts based in past
government behavior. More importantly is OUR responsibility of
oversight, I just hope it never reaches the level of removing a
tyrant by force. It would be civil war since many American seem, at
this point, to have no problem with a young Big Brother.
In another 50 years people will read 1984 and think there is
nothing wrong in the book.
|2.13.08 @ 4:42PM|#
Liberty is dying and absolutely no one cares. Where are the Americans who love liberty. We have become a nation of easily distracted imbeciles undeserving of freedom as the founding fathers understoodstood it.
|2.13.08 @ 4:44PM|#
Government is the problem not the solution. The temptation to use and abuse power is apparently to great for our elected officials to resist.
|2.13.08 @ 4:45PM|#
"In any case though, I could live with what you proposed. As
long as someone is reviewing things in an objective manner and
someone has the power to say "no this is wrong and has to
stop""
They would have to do more than that. If they were fucking around
and doing baseless stuff, they ought to just hang them. The problem
is you are right, I doubt Congress would really have the nerve to
do it.
|2.13.08 @ 4:46PM|#
""Of course, those of us who are just living our lives are not
worried, because the government would never want to keep tabs on
little ol' us, now would they?"""
And the NSA would never ask for data held by facebook, MySpace, or
any on-line dating service.
|2.13.08 @ 4:47PM|#
This is something that has been true throughout history and in all systems of government. Voters are foolish to believe that an elected official somehow has access to special knowledge that will allow them to make the best decision for the most people.
|2.13.08 @ 4:48PM|#
It's possible for the government to scan millions of Emails
in less time than it took them to open and review a couple of
hundred back in WWII
If they're going to scan millions of our emails anyway, couldn't
they at least filter out the spam while they're at it? I mean if
they're scanning is sophisticated enough to flag suspicious looking
emails I'm bet they could catch the penis-enlargement ones as
well.
|2.13.08 @ 4:51PM|#
I saw, I think it was Hayden, say that if the government asks you to do something illegal you should do it and not be held liable. I guess the new order is that law applies to citizens, not government. I just can't believe how many people with flag pins on their suits are agreeing.
|2.13.08 @ 4:52PM|#
"""I mean if they're scanning is sophisticated enough to flag
suspicious looking emails I'm bet they could catch the
penis-enlargement ones as well."""
Who do you think is their biggest customer!
|2.13.08 @ 4:58PM|#
I don't much worry about the NSA tracking my phone calls or
e-mails. But you should worry about your phone company or your ISP
doing it. My father worked for AT&T for 30 years and it is very
common for phone techs on the night shift trying to stay awake to
listen to phone calls for entertainment. They are not supposed to
but they do and there is no way to track or stop it. I would
imagine the tech folks at ISPs troll for interesting e-mails or
monitor the webserfing of their friends and family or enemies more
than we would like to admit.
That is the thing about this whole thing. It is not 1965 anymore.
If the President wants dirt on Obama, he doesn't need the CIA. He
just needs some operatives with some money and a little know how to
buy off the right ISP or phone company employee and he could have
all the access anyone could want.
|2.13.08 @ 5:00PM|#
RC Dean,
Can anyone explain to me why issuing retroactive immunity to
someone isn't a taking from the plaintiffs who just had their cases
evaporate? You don't have a property right in expected
profits. Certainly not in profits from a lawsuit.
John,
The courts have always been the branch that reviewed and authorized
requests for searches. Why do you propose to give this power to the
legislature?
|2.13.08 @ 5:04PM|#
"The courts have always been the branch that reviewed and
authorized requests for searches. Why do you propose to give this
power to the legislature?"
Because in certain cases, by the time you go to court it is too
late. The courts can't give retroactive warrants. For a very small
range of cases, I would rather them do what they need to do and
know that everything they do will later have to be reported and
justified before a bi-partisan committee of Congress. I would say
to them, fine you go do your secret squirrel stuff and protect the
country, but understand that if you misuse this power in anyway or
anyway act in bad faith or exceed your power accidentally or not,
it is going to be your ass.
Also, Congress, unlike judges can be held accountable. If the
executive is doing something outrageous and the Congress rubber
stamps it, Congress has to be answer to the voters. If a FISA
judges just rubber stamps something, who is going to know and if
they did when is the last time someone held a judge responsible for
anything?
|2.13.08 @ 5:10PM|#
Actually, the FISA court can give retroactive warrants.
As for accountability, I think you're being disingenuous. I think
you are counting on public pressure - and not adherence to the law
- to pressure Congress into being exactly the rubber stamp you
claim to fear. I think you know judges, who don't have to worry
about reelection, would be less likely to be swayed by the
President raising the threat level and talking about "liberals
siding with terrorists."
|2.13.08 @ 5:11PM|#
""The courts can't give retroactive warrants. For a very small
range of cases, ""
FISA allows retro warrants. But I get want your saying. Maybe BOTH,
judical and congressional oversight is in order.
bubba|2.13.08 @ 5:12PM|#
testing that defense would highlight the administration's
dishonesty and lawlessness.
Except it would be the companies punished, not the Bush
Administration.
The companies should not be punished for what they reasonably
believed, at the time, to be a legal request. Especially if this
activity is now explicitly legal.
|2.13.08 @ 5:15PM|#
"A dust bunny among lint."
That good. Is it yours, joe? I'm stealing it in any case.
|2.13.08 @ 5:17PM|#
"""As for accountability, I think you're being
disingenuous."""
Disingenous? I don't think that shoe fits. John might, or might not
be wrong. People can be wrong without being disingenous. However,
his point of judical oversight is valid. All of the activies Radley
has been writing about were approved by a judge. That doesn't mean
that Congress can do any better. I'm saying no they can't.
|2.13.08 @ 5:21PM|#
"""The companies should not be punished for what they reasonably
believed, at the time, to be a legal request."""
Wow what an assumption. I really doubt they consider it to be a
legal request. The safer bet is that they thought it would stay top
secret. After all, companies don't sneeze without checking with
their lawyers out of lawsuit fears, why would this event be any
different?
|2.13.08 @ 5:51PM|#
There's always the Censor. Kind of like THE BISHOP! of Monty Python fame, but without the baculis pastoralis. Or maybe with it--I haven't work out those sorts of details, yet.
|2.13.08 @ 6:15PM|#
The companies should not be punished for what they
reasonably believed, at the time, to be a legal request. Especially
if this activity is now explicitly legal.
Isn't that the point of the lawsuit? To find out if the request
could reasonably be believed to be legal.
As I stated up-thread, I'm pretty sure that the law is that the
request from the Government had to come in writing and Justice or
the AG had to certify that the request was legal and appropriate,
and then the telecoms couldn't be held liable.
Now the telecoms are being sued to produce evidence that the
request could reasonably be considered legal and to verify that
they demanded from the government what the law requires of them to
not face consequences.
Qwest did pause and they believed that the governments request was
not in fact legal and proper, so they refused. So, to me at least,
it's not obvious that the companies reasonably the request to be
legal. So the telecoms are being asked to justify their
actions.
I really don't see what the problem is with allowing this lawsuit.
Basically the point is to verify that the telecoms complied with
what is required of them, by law. If they did, then the telecoms
are home free. But the fact that they don't want to seems to
indicate that they abdicated their responsibility to protect the
privacy of their customers.
|2.13.08 @ 6:29PM|#
You don't have a property right in expected profits.
Certainly not in profits from a lawsuit.
But in this case, they aren't taking away expected profits. They
are taking away an actual, existing claim for damages.
By doing it retroactively, they are taking something away from me
today that I definitely held yesterday (the claim against telecoms
for their activities in the past). Prospective legislation doesn't
do this; if it removes a cause of action prospectively, it only
takes something away that I might have had.
But yesterday I definitely had a claim, and today I don't.
I guess the question is whether that claim is a property right
before it is reduced to judgement. After it is reduced to judgment,
you damn skippy its property.
But before? I dunno, but I think there's an argument that its an
economic right that I definitely had, that Congress took, and that
therefore the takings clause applies. Maybe the law on regulatory
takings would apply.
|2.13.08 @ 6:32PM|#
Dodd offered an amended version. 31 senators (all of them
Democrats) voted for it. 67 voted nay (including every single
Republican).
So I guess both parties are equally at fault huh?
http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=2&vote=00015#position
Bingo|2.13.08 @ 7:24PM|#
Hide your web browsing: TOR, Vidalia
Encrypt your files:TrueCrypt
Free, open source, with no added NSA/CIA/FBI. For Windows, Linux,
and Mac OS X!
Ben|2.13.08 @ 7:40PM|#
What's the point of a corporate oligarchy, if you can't even purchase the laws you desire in a timely fashion? It's all so confusing.
|2.13.08 @ 9:15PM|#
RC,
Since it's just a claim for damages, and hasn't been awarded, it's
still in the realm of the speculative.
They are taking something away from you - your right to sue - but
that isn't property, either in the sense of being economic value,
or of being a possession.
stuartl|2.13.08 @ 10:02PM|#
I really don't see what the problem is with allowing this
lawsuit. Basically the point is to verify that the telecoms
complied with what is required of them, by law. If they did, then
the telecoms are home free. But the fact that they don't want to
seems to indicate that they abdicated their responsibility to
protect the privacy of their customers.
Spoken like a lawyer. Maybe the telecoms don't want to spend their
customers money on huge lawyers fees and the publicity campaign
they will need to run to counteract the inevitable congressional
preening (see Clemons, Roger). Much of FISA is ambiguous in the
modern telecom era. After 9-11 the govt requests something that may
or may not be legal depending on the interpretation, but the
highest law officer in the land tells them it is okay. So some do
it. Those that don't find their CEO in jail.
Wouldn't we be screaming in defense of somebody who helped the
police break into a house when they were told it was an emergency,
and then that person was prosecuted for breaking and entering? But
I guess it would be okay if all he has to do is spend his life's
savings defending himself and dealing with trial by media (see
Jewell, Richard).
Fluffy|2.13.08 @ 10:27PM|#
Wouldn't we be screaming in defense of somebody who helped
the police break into a house when they were told it was an
emergency, and then that person was prosecuted for breaking and
entering?
Maybe. Maybe not.
What if the police told somebody it was an emergency, and they
needed them to jam a billy club up some guy's ass?
I would be screaming for them to be prosecuted.
And I would tend to discount claims of exigency here. These events
took place over YEARS. 9/11 or no 9/11, these are Fortune 500
companies with massive legal budgets and in house counsel and
somebody should have been able to independently look at the law and
say, "Hey guys, we might have a problem here."
One good thing about NOT granting immunity is that if lawsuits are
able to go forward, we can get access to all internal
correspondence regarding these matters, and then we will see if
there was any internal debate about the legality of the cooperation
the telecoms extended here. I think we can safely assume that one
reason immunity is being sought so desperately is because there are
probably lots of memos to the effect of, "Yeah, we know this is
hella illegal, but we've been told by X that if we don't go along
various punitive measures will be taken against us by various
federal departments." And you know what? There's no legal right to
break the law in order to comply with extortion.
stuartl|2.14.08 @ 8:38AM|#
Fluffy,
If I understand you correctly, you are saying we should prosecute
someone for being a victim of extortion. The government tells
someone what to do, they do it, and then the government prosecutes
them. And you think this is okay!?
If there was a crime committed by the government, go after the
people in the government that committed the crime, not the poor
saps who were being told what to at the point of a gun.
BTW, I not at all convinced that any "crime" was committed by
anyone. Sections of the law were badly out of date and make no
sense in modern terms. It is the equivalent to applying a law on
the proper stabling of a horse to how someone parked their car.
Remember these laws were written when the Apollo astronauts were
still using a manual sextant for navigation.
The government is at fault here, but it is for having a lousy
law.
|2.14.08 @ 9:26AM|#
Even though the House has since defeated this measure, the
entire issue seems moot. Is there anyone out there who truly
believes that members of the Bush administration and the
intelligence community have always obeyed the law? While they may
achieve a firmer grasp on telecom folks should this pass, I doubt
that its failure would really limit their activities. Obviously a
fair number in the Bush administration and intelligence community
believe they are above the law.
The truly ironic, paradoxical aspect of this is that they are
willing to break the law in order to protect a democratic society
and process that no longer exists due to their own continual
undermining of rights guaranteed in the Constitution.
Fluffy|2.14.08 @ 10:15AM|#
If I understand you correctly, you are saying we should
prosecute someone for being a victim of extortion.
Not at all.
I am saying that "I was being extorted!" is not a defense for
committing a crime. Any crime.
You can't commit murder or rob a bank because a blackmailer tells
you to.
If a government official attempts to extort you, you should go to
the press. And to your Congressman, assuming they aren't the
government official in question.
And yes, we certainly should go after any government officials who
engaged in extortion. That is the real target here. Lawsuits
against the telecoms are merely a means to that end. In order to go
after extorters, the first thing you need to do is force their
victims to confess that they have been extorted. That's precisely
what the telecoms have not been willing to do, and precisely what
the immunity grant is designed to forestall. But even though the
telecoms are the "smaller fish" here, if they broke privacy laws
they deserve to be punished.
|2.14.08 @ 11:06AM|#
I suspect you're right on how the courts would treat the takings
issue, joe.
Still, regulatory takings may have to be compensated even if all
they do is take away a potential use of your property. The value of
undeveloped real estate is almost entirely its potential
uses.
Imagine a lay-down win of a claim against someone, say a contract
claim that
windycityatty|2.14.08 @ 8:22PM|#
stuart said "BTW, I not at all convinced that any "crime" was
committed by anyone. Sections of the law were badly out of date and
make no sense in modern terms. It is the equivalent to applying a
law on the proper stabling of a horse to how someone parked their
car. Remember these laws were written when the Apollo astronauts
were still using a manual sextant for navigation."
You are badly mistaken on all fronts. There is no doubt that crimes
have been committed. FISA by its very terms is exclusive and would
require warrants for domestic warrantless wiretapping of u.s.
citizens. Domestic warrantless wiretapping of u.s. citizens was
committed sans warrants: there are admissions by Gen Hayden, George
Bush, ALberto Gonzales, Mike McConnel, et al, to this very fact. On
public t.v. no less. Ergo, a crime was committed. Whether that
crime is excusable is another matter.
There are also a host of other federal crimes that come into play
when dealing within the domestic-only-surveillance aspect of this
controversy not to mention consumer privacy laws and a whole host
of other federal laws. As someone noted, Glenn Greenwald has
documented the implicated federal laws in minute detail.
And you are wrong or grossly misleading again regarding the 'ol '
FISA law and your silly analogy involving horses. It HAS been
updated since 1978. Multiple times. During this Administration.
This has been documented repeatedly by constitutional law experts.
Plus, it has all happened within the last several yrs. Do you live
in a cave or what? Inform yourself.
These corporate legal departments have some of the best and
brightest firms in the world advising them. Nobody - NOBODY can
honestly say they couldnt have known which laws were implicated.
Its simply 100% bogus. If so, every single one of their lawyers
would have committed malpractice.
And seriously, if you think its the warrantless wiretapping they
are worried about -HA. Check out the electronic frontier
foundation's research into this. Massive data-mining operations
were being set up to essentially filter EVERYTHING passing through
At&t's (and presumably others) domestic servers. Also google
the now defunct (congress prohibited any funding towards it) Total
Information Awareness program - which is essentially what this
whole operation is about. This isnt alex jones conspiracy land - it
is fact. And these facts are trickling out and the pieces are
coming together.
Iran contra redux, anyone?
Throw in a few million dollars by telecom lobbyists to both sides
in Congress - and voila! Immunity. The congresscritters don't want
the lawsuits to proceed because once the truth comes out (which
documents being leaked during discovery would do) - the one's on
both sides of the aisle who were informed of this and went along
will be hung out to dry. F em all.
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