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.  

Comments

zig zag man | February 13, 2008, 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 | February 13, 2008, 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.

Cesar | February 13, 2008, 3:16pm | #

And the Democrats fail to do something useful. Again.

scape | February 13, 2008, 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!

Kolohe | February 13, 2008, 3:24pm | #

The audacity of abstention!

And it takes a village to kill a bill.

P Brooks | February 13, 2008, 3:26pm | #

There is no need for immunity, as I understand it, so long as the order from the government is legal. However....

Pro Libertate | February 13, 2008, 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.

ChicagoTom | February 13, 2008, 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 | February 13, 2008, 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.

ChicagoTom | February 13, 2008, 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.

joe | February 13, 2008, 3:31pm | #

Fluffy,

I don't remember the admdinistration arguing that bit of logic, though it sounds like them. Where did you get that?

Jammer | February 13, 2008, 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...

P Brooks | February 13, 2008, 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?

joe | February 13, 2008, 3:32pm | #

Carol, I think the telecoms should be given immunity, too.

By the Special Prosecutor.

In exchange for their testimony regarding government officials.

ChicagoTom | February 13, 2008, 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?

Pro Libertate | February 13, 2008, 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).

ChicagoTom | February 13, 2008, 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 | February 13, 2008, 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 | February 13, 2008, 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...

joe | February 13, 2008, 3:42pm | #

And you, my dear, look fetching in those jackboots.

Pro Libertate | February 13, 2008, 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.

Jamie Kelly | February 13, 2008, 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 | February 13, 2008, 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 | February 13, 2008, 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.

From the Keystrokes of John Q. Public... | February 13, 2008, 3:49pm | #

God told President Bush to do it..

Carol | February 13, 2008, 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.

John | February 13, 2008, 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.

Professor Chaos | February 13, 2008, 3:53pm | #

Well, shit.

Carol | February 13, 2008, 3:55pm | #

"Until that time, it is just partisan whining."

Good answer, John. Good answer!

d | February 13, 2008, 3:55pm | #

Where the hell was Chris Dodd???

Pro Libertate | February 13, 2008, 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.

joe | February 13, 2008, 3:57pm | #

"I'll only care about this issue if you say bad things about the party I hate! You...partisans!"

Taktix® | February 13, 2008, 4:00pm | #

Carol = Juanita/Jane?

Pro Libertate | February 13, 2008, 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 | February 13, 2008, 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

J sub D | February 13, 2008, 4:04pm | #

Carol is a troll or an idiot. Quite possibly both. I'm all for freedom but Carol needs a keeper.

Episiarch | February 13, 2008, 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.

John | February 13, 2008, 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 | February 13, 2008, 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.

Pro Libertate | February 13, 2008, 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.

Brian Courts | February 13, 2008, 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?

TrickyVic | February 13, 2008, 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.

Pro Libertate | February 13, 2008, 4:13pm | #

I do expect a liberal use of the pardon power in about ten months.

Episiarch | February 13, 2008, 4:14pm | #

Thanks, Brian, you jumped on that quickly. In fact, I do think it's both.

J sub D | February 13, 2008, 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 | February 13, 2008, 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 | February 13, 2008, 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® | February 13, 2008, 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.

R C Dean | February 13, 2008, 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.

TrickyVic | February 13, 2008, 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.

Happy Jack | February 13, 2008, 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.

Pro Libertate | February 13, 2008, 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 | February 13, 2008, 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.

Pro Libertate | February 13, 2008, 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?

John | February 13, 2008, 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.

ChicagoTom | February 13, 2008, 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

ChicagoTom | February 13, 2008, 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 | February 13, 2008, 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?

ChicagoTom | February 13, 2008, 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.

John | February 13, 2008, 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.

TrickyVic | February 13, 2008, 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.

Brian Courts | February 13, 2008, 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.

ChicagoTom | February 13, 2008, 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.

J sub D | February 13, 2008, 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.

J sub D | February 13, 2008, 4:33pm | #

So angry I can't even make tags work. Grrr.

John in Nashville | February 13, 2008, 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.

ChicagoTom | February 13, 2008, 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"

Anonymoose | February 13, 2008, 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

Soda | February 13, 2008, 4:40pm | #

Messages imbeded in open transmissions, dummy and decoy orders, personal contact, war drums, etc.

Or photo messages like Marlo in "The Wire."

TrickyVic | February 13, 2008, 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.

james | February 13, 2008, 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.

james | February 13, 2008, 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.

John | February 13, 2008, 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.

TrickyVic | February 13, 2008, 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.

james | February 13, 2008, 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.

Brian Courts | February 13, 2008, 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.

TrickyVic | February 13, 2008, 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.

TrickyVic | February 13, 2008, 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!

joe | February 13, 2008, 4:54pm | #

Thank you, Fluffy. You are a dust bunny among lint.

John | February 13, 2008, 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.

joe | February 13, 2008, 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?

John | February 13, 2008, 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?

joe | February 13, 2008, 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."

TrickyVic | February 13, 2008, 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 | February 13, 2008, 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.

Citizen Nothing | February 13, 2008, 5:15pm | #

"A dust bunny among lint."
That good. Is it yours, joe? I'm stealing it in any case.

TrickyVic | February 13, 2008, 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.

joe | February 13, 2008, 5:18pm | #

Citizen N,

I was just seeking a compliment appropriate to Fluffy's handle.

TrickyVic | February 13, 2008, 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?

Pro Libertate | February 13, 2008, 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.

ChicagoTom | February 13, 2008, 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.

R C Dean | February 13, 2008, 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.

Mr. Nice Guy | February 13, 2008, 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 | February 13, 2008, 7:24pm | #

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Ben | February 13, 2008, 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.

joe | February 13, 2008, 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 | February 13, 2008, 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 | February 13, 2008, 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 | February 14, 2008, 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.

suzkem | February 14, 2008, 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 | February 14, 2008, 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.

R C Dean | February 14, 2008, 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

R C Dean | February 14, 2008, 11:07am | #

Oops, ignore that last unformed thought.

windycityatty | February 14, 2008, 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.