R U Ready for Retroactive Immunity?

David Weigel | June 20, 2008

At this moment, the House of Representatives is voting on a compromise Foreign Intelligence Surveillance Act reform that basically gives away the store. reason Contributing Editor Julian Sanchez published a rundown of the bill yesterday at Ars Technica:

House proponents of the FISA amendments have been circulating a series of talking points in response to a New York Times editorial condemning the deal, but many of the "corrections" are themselves false or misleading. The document claims, for instance, that the new bill "contains greater Constitutional protections than the original 1978 FISA law" (since amended many times) in part because it specifies that FISA is the "exclusive means" for foreign intelligence surveillance. But the original law contained the very same stipulation. It also makes much of the requirement, long in place, that intelligence agencies seek a FISA warrant before "targeting" Americans. But this simply ignores the actual point of controversy: The power to acquire communications between Americans and broadly-defined "targets" abroad with only very loose and general court supervision. Perhaps it's no surprise, then, that House leaders have scheduled such a rapid vote on the bill, leaving opponents precious little time to get their own message out.

More background on FISA here... the debate is playing now on your friendly neighborhood C-SPAN outlet.

Comments

|6.20.08 @ 10:35AM|#

Perhaps it's no surprise, then, that House leaders have scheduled such a rapid vote on the bill, leaving opponents precious little time to get their own message out.

Wait, I thought the Democrats controlled the House.

Tsu Dho Nihm|6.20.08 @ 10:50AM|#

Of course the immunity is not for the telecoms, who had reasonable belief that they acted in accordance of law. It's for the government officials who fraudulently convinced the telecoms that they were acting lawfully.

|6.20.08 @ 10:53AM|#

Why is the headline about telecom immunity and the body of the post about the foreign-to-domestic question?

Oh, yeah, Steny Hoyer sucks. Telecom immunity is his baby.

Well, they didn't get it last time this was on the floor.

|6.20.08 @ 10:56AM|#

A couple of things to consider

1. The FISA system is only onerous because the FBI is incompetent and can never get their shit together for a warrant in any reasonable time. The authorization for a request for a warrant has to go from the field agent up through endless echelons of FBI bureaucracy before it is ever submitted. The FISA courts are actually really flexible and committed but they can't give you a warrant when you haven't asked for one. The whole "FISA is hard" argument is a productive of nothing other than FBI mico-management and incompetence.

2. The NSA listens to everything thing. It is absolutely unbelievable what they can do. If you are on a computer, you have no privacy beyond the anonymity of the mob.

|6.20.08 @ 11:06AM|#

joe,

Once we get the right Democrats in positions of power, everything will work out.

::snicker::

Ben|6.20.08 @ 11:06AM|#

But the Democrats were going to be different than the Republicans!

Sam Grove|6.20.08 @ 11:09AM|#

I sent my protest via downsizedc.com

|6.20.08 @ 11:20AM|#

The breakthrough on the legislation came hours after the White House agreed to Democratic demands for domestic spending additions to an emergency war funding bill.

...

The war spending bill, for example, includes $162 billion for the conflicts in Iraq and Afghanistan and an additional $95 billion worth of domestic spending on programs such as unemployment insurance and higher-education benefits for veterans. Bush, who had threatened for months to veto the legislation, said he will sign it.

WaPo

When all else fails, try bribery "bipartisan compromise." It never fails.

|6.20.08 @ 11:25AM|#

Thank Chthulhu for those principled Democrats; otherwise, we'd be in trouble.

Fluffy|6.20.08 @ 11:28AM|#

Yes, this FISA debacle is reminding me once again why I hate Democrats.

Supporting the Bush security state because you're an authoritarian dirtbag is bad.

But supporting the Bush security state because you're afraid that the least popular President in decades and a political party in a death spiral will run ads against you saying you're "weak on security" is even worse.

squarooticus|6.20.08 @ 11:29AM|#

"Remember: if we only get the right people in office, everything will work out."

Riiiiiiight.

How long is it going to take for people to figure out that the system itself is the problem, not the politicians who are in power at any given time? Democracy is fundamentally broken, and the consequences of that brokenness are worse the more centralized government becomes.

|6.20.08 @ 11:31AM|#

Chris Potter, didn't you write exactly the same comment three months ago, just before Congress DIDN'T pass FISA reform bill with telecom immunity?

Why, yes you did.

|6.20.08 @ 11:36AM|#

John-

"The FISA courts are actually really flexible and committed......"

Committed to what? Violating the 4th amendment?

|6.20.08 @ 11:40AM|#

joe's spokesmodel | January 23, 2008, 10:09am | #

Oh, stop it, you third-party partisans. This is the Republicans' fault, since they would filibuster the better version of the bill and we need to pass some kind of bill.

If you don't like this, vote for all Democrats in November so we can have veto-proof majorities in both houses and a Democratic president. Then we'll be able to protect your civil liberties.

That was, of course, Chris Potten posting as "joe's spokesmodel," just days before the FISA reform bill including telecom authorization died in the Senate.

But no, seriously, all the best people, who really are so much smarter than you, know exactly how this is going to go down.

Fluffy|6.20.08 @ 11:49AM|#

But no, seriously, all the best people, who really are so much smarter than you, know exactly how this is going to go down.

Um, how is it going to go down then?

|6.20.08 @ 11:53AM|#

Have the Democrats done anything they promised before the 2006 elections? Hell, have they don't anything remotely different than what the Republicans were doing? What a useless bunch.

|6.20.08 @ 12:05PM|#

Fluffy,

I don't know.

What's more, I don't pretend to know, then point to my pretense of evidence of my wisdom.

|6.20.08 @ 12:10PM|#

The NSA listens to everything thing. It is absolutely unbelievable what they can do. If you are on a computer, you have no privacy beyond the anonymity of the mob.

It is absolutely unbelievable what people think that the NSA can do. Sure, get the laws right, but do you possibly think that the NSA has either the storage space or the analysts to actually do what you claim? Of course, since the intelligence community likes people not having idea what they can and can't do, and just likes classifying things, there's no hurry to clear things up.

There's actually multiple issues going on here:

1) Domestic-to-foreign communications, where they're going to make an analogy to customs searches and the like. Past demogoguery on "every shipping container must be searched" doesn't make resisting this easier.

2) Foreign-to-foreign communications that happen to travel through the US, whether VoIP or whatever.

3) Treating packet-switched Internet communications like wireless instead of like circuit-switched POTS communications. Rather than being able to target a particular communications without tapping others at all, there really is no other way than install a "tap" that really inspects every packet and only saves ones of interest. (That was the point of Carnivore, anyway; it was supposed to extract only the "meat" of communications of interest unlike the "omnivorous" packet sniffers commercially available.) But does inspecting those packets require a warrant? Probably depends on details of the software implementation and whether there's any chance of leakage, etc.

The NSA outside the US has long operated on wireless communications in precisely this way; grab communications, and then discard any from a US person unless they have a FISA warrant. (Various other conditions established by executive order, such as a 48 hour time limit; the recent FISA changes have referenced these "minimization procedures.) By contrast, phone communications over wires have typically been much more protected.

Going to a packet-switched network improves security and anonymity, all things being equal. But all things are NOT equal-- the NSA has always focused on its capabilities, not privacy. The NSA position is roughly that the previous restrictions (on domestic-to-foreign and foreign-to-foreign wired communications passing through the US) were not Constitutionally necessary but were acceptable since they didn't interfere with capabilities, but when the technology changes so that the NSA would lose capability under the current regs, the regs should be changed. And so we see that under a constant level of capabilities assumption, a network that hypothetically protects anonymity and privacy more ends up protecting it less.

|6.20.08 @ 12:53PM|#

"I'm not here to say that the government is always right, but when the government tells you to do something, I'm sure you would all agree that I think you all recognize that is something you need to do." --Sen. Kit Bond (R-MO)

Got that everyone? Any questions? When the government tells you to do something, no matter how illegal, you must obey. 'Cause it's the government, and you must obey it. 'Cause it's the government. Which you must obey.

Patrick Meighan
Culver City, CA

Guy Montag|6.20.08 @ 12:54PM|#

Thank goodness we have a majority Democrat Congress that is responsive to its constituants.

Seems that low presidential job rating does not include spying on suspected terrorists and the good, sharp, members of the majority party agree.

Now, for that pesky ANWR issue.

|6.20.08 @ 2:09PM|#

Congress, if you are praised by George Bush, you must be doing something really wrong.

thoreau|6.20.08 @ 2:44PM|#

And, if Congress is also getting kudos from Guy Montag then they're doing something doubly wrong.

TallDave|6.20.08 @ 3:44PM|#

I was disappointed the bill didn't indict anyone for war crimes. Isn't that why we elected this Congress?

thoreau|6.20.08 @ 4:00PM|#

TallDave finally talks some sense.

Fluffy|6.20.08 @ 4:15PM|#

http://talkingpointsmemo.com/archives/201032.php

Obama loves him some telecom immunity, Joe.

That slurping sound you hear is Obama pleasuring the President. He loves him some o'that, too.

|6.20.08 @ 4:40PM|#

Quite the reader, aren't you Fluffy?

From Obama's statement:It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses.

You SO wanted that to be true so you could waggle your finger at me, but oh, reality intrudes as usual.

|6.20.08 @ 4:43PM|#

Those of us who 1) can keep our heads and 2) are trying to understand reality than score points with people we've never laid eyes on over the internet will have to wait and see what "try to remove that provisions" actually means.

Others with different motives seem to be quite eager to take out that ARM based on all the chickens that will be hatching in a month.

|6.20.08 @ 4:46PM|#

Seriously, is it that hard to read all the way to the fourth paragraph of a statement?

The hell, Fluffy?

Fluffy|6.20.08 @ 4:49PM|#

Joe, you are being an idiot today.

Reid is going to stage a symbolic vote to allow certain Senators to register their disapproval of immunity, while the bill itself is shepherded through the Senate and passes easily.

The Senate wanted to give the telecoms immunity before.

By waiting until after the House vote to issue his statement, Obama was deliberately allowing the cowards among the Democrat caucus in the House to vote for this nonsense without any opposition from him at all.

The part of his statement endorsing this compromise bill - and that's what this is, an endorsement, no if's and's or but's about it - claiming that he will still oppose telecom immunity is as transparent a deception as Hoyer's claim that the bill doesn't provide for immunity.

It's a disgraceful, Kerryesque maneuver on Obama's part.

Obama is a punk. All that crap we've spilled on these pages about how Obama is better for libertarians because he'll roll back Bush's excesses and/or will create more transparency in government just went out the window. If he's willing to play along to immunize lawbreakers to keep Bush's secrets, just to make life easier for some blue dog trash in his party, then we know what kind of transparency he's going to provide. None at all.

thoreau|6.20.08 @ 4:51PM|#

I'm going to withhold judgment on Obama until the final Senate vote. The Dodd (respect The Dodd) could yet kill this.

|6.20.08 @ 5:00PM|#

Yeah, the opinion of a guy who can't even read four consecutive paragraphs is really going to hurt me.

If you can't even figure out Obama's position right now, when he openly states it, what makes you such an expert that you can predict the future?

The Senate wanted to give the telecoms immunity before. After the House had already passed an incompatible bill, and before the public reacted so strongly against giving the telecoms immunity.

By waiting until after the House vote to issue his statement, Obama was deliberately allowing the cowards among the Democrat caucus in the House to vote for this nonsense without any opposition from him at all. You do understand the whole bi-cameral legislature thing, right? And that Barack Obama is a Senator? And that this was a House bill? If I sound condesending, it's because your ignorant little outburst had made me think less of you.

Piss off. You got ahead of yourself, took the low road, and got bitch-slapped for it.

thoreau|6.20.08 @ 5:03PM|#

All I know is that The Dodd abides. If Obama joins forces with The Dodd and fights the good fight, I'm willing to vote for Obama. If Obama caves, then I write-in a vote for The Dodd.

|6.20.08 @ 5:12PM|#

It's annoying that you can absolutely count on every single Republican in the caucus to march in lockstep on things like this, so that even the tiniest number of defections among the Democrats means they get their way.

There can't be 10% of the Replicans who break ranke? 8%? 5%?

One no vote from the GOPers. One. That's a rounding error. Pathetic.

thoreau|6.20.08 @ 5:37PM|#

That is why I won't be voting for a Republican. Depending on how this goes, I'll either be voting for Obama or writing in The Dodd. Either way, I'll vote for a Democrat.

Fluffy|6.20.08 @ 5:45PM|#

Guess what, Joe, you dickhead?

I've been talking to progressives about this bill at Greenwald's, at Atrios, and at Kos for the last week.

The progressives all agree with me. That Obama failed to provide leadership, that Obama deliberately withheld his statement until after the House vote, and that endorsing the compromise and making a meaningless statement about opposing telecom immunity in the Senate is a canard.

The time to fight the Hoyer bill was in the House. Or preferably, before Hoyer even brought it forward. There is no excuse for this bill being put to the House. None.

And yes, Obama is a Senator. He's also the de facto head of the Democratic party now. There is no excuse for failing to make a statement before the vote. None. Feingold made a statement. Leahy made a statement. Obama did not. He didn't make a statement because HE'S PART OF THE HOYER COMPROMISE. He didn't make a statement because if the de facto head of the party had come out and demanded that the bill not be passed, too many House Blue Dogs would be put on the spot.

Fluffy|6.20.08 @ 5:51PM|#

Greenwald summarizes Obama's betrayal better than me:

Nobody should be fooled by Obama's vow to work to remove telecom amnesty from this bill. Harry Reid is already acknowledging that this "effort" is likely to fail and is just pure political theater: Reid said: "Probably we can't take that out of the bill, but I'm going to try." The article continued: "Reid said the vote would allow those opposed to the liability protection to 'express their views.'"

We should continue to demand that amnesty is removed from the bill -- and fight it to the bitter end -- but this whole separate vote they'll have in the Senate on whether to remove amnesty is principally designed to enable Obama, once he votes to enact this bill, to say: "Well, I tried to get immunity out, and when I couldn't, I decided to support the compromise." It's almost certainly the case that Hoyer secured Obama's support for the bill before unveiling it.

Either way, Obama -- if amnesty isn't removed -- is going to vote for warrantless eavesdropping and telecom amnesty, and his statement today all but sealed the fate of this bill. There is no point in sugarcoating that, though we ought to continue to fight its enactment with a focus on removing amnesty in the Senate. Greg Sargent makes several good points about Obama's statement.

|6.20.08 @ 8:38PM|#

Obama can't appear weak on terrorism going into the general election. McCain plans to play Obama as weak on defense. Give in on Iraq, give in on the GWOT. Obama might be able to defend from the attacks but success will depend on him not doing anything else to help McCain make that arugment.

""" Sure, get the laws right, but do you possibly think that the NSA has either the storage space or the analysts to actually do what you claim?"""

Well space is not as big of a problem as it use to be, and I don't think the NSA must be the holder of the information on the grand scale. They only need access to spy. That's exactly want the NSA got. I seriously doubt that the NSA is the only one with access to the taps. Analysts need not be human anymore, algorithms do a lot of the work.

Amazing amounts of data are being collected and stored now, It's not science fiction anymore. Maybe my view is tainted because I live in the most surveilled city in America. The sources of data collection that I can see has grown exponentially in the last 8 years and I know not all sources are visable to my eyes. I wouldn't call it big brother yet. But little brother is alive and growing. The amazing thing to me is how many American are cheering as it grows and gets down right pissed off when someone interferes. Forget about stopping it.

For those cheering little brother I ask, Is there a such thing as too much information for the government know about a citizen? Where is the line if one exists at all? Do you really have that much trust in the government to behave with all that info?

I'd like to see the issue more partisan where right-wingers fear giving left-wingers that much authority and vice versa.

|6.20.08 @ 9:49PM|#

TrickyVic,

The question is, how do you stop "little brother"? It is inevitable once the technology is available. I'm with David Brin of Transparent Society fame in advocating for a two-way surveillance solution, ie, an infrastructure that allows the watched to watch the watchers just as easily.

|6.21.08 @ 9:40AM|#

Damn, Fluffy's lost it. Stop swearing, chief, it makes you look like a little boy who just got his butt kicked, shouting from halfway down the block. I understand you're very emotional, and now you're embarrassed, too, but don't take it out on me.

OK, I disagree with some progressives on the internet - the ones who assured three months ago that telecom amnesty was going to pass any minute, before it didn't.

So?

|6.21.08 @ 3:43PM|#

I think there is a line where people will get upset about it. It will be interesting to see where that line is and what we do about it. Forget about watching the watchers. Government is growing more secretive while forcing the citizenry to be more open. Nothing to hide, nothing to fear only works when the government says it to the citizens. It doesn't work the other way around.

The problem with the immunity is that it's ex post facto. Congress is forbidden to pass it. ROFLMAO Not like it's stopped them before and I doubt the so-called constitutionalist SCOTUS judges will shoot it down.

|6.21.08 @ 3:45PM|#

I'd like to see Radley write a story about ex post facto, it's importance and how it's abused.

|6.21.08 @ 8:45PM|#

Hold it, ex post facto only works one way. You can't make something retroactively illegal and arrest people, but you can legalize something and get people who violated the old law off the hook.

Look at the repeal of Prohibition. Or the Reagan-era immigration amnesty.

|6.22.08 @ 4:42PM|#

I think any politician who supports this should be removed from office.
And when I say removed from office I mean physically taken by voters from their D.C. offices and their eyes gouged out with rusty ice picks and their genitals fed to a tire shredder.
Of course, if they HAD any genitals they wouldn't vote for this steaming pile of shiezen.