We were fortunate that Al Gore resided in the US when he invented the Internet: Being first kids on the block, our infrastructure built out more rapidly than the rest of the world, which now mostly uses US switches and hubs to pass telecom data from place to place. That lucky historical happenstance means that terrorism-related communications between Master Blaster in Beirut or Islamabad and the mentally deficient splodeydope on the wet end of the stick in Baghdad or Tel Aviv might well pass through New York, Miami or Los Angeles.
Juicy pickings for the clever dicks at NSA, and after those towers came down on a bright September morning not so very long ago, the agency’s lawyers argued that communications between Master Blaster and any surviving stateside sympaticos of Mohammed Atta, et al might be worth a sniff as well. The nation being in an evident state of war as evidenced by a Congressional Authorization on the Use of Military Force, and the president’s Article II powers permitting him to gather intelligence on enemies foreign and domestic as a necessary incident to those powers.
Not everyone agreed, famously. Having whipped the nation into a frenzy on the fear that their emails to Osama bin Laden might have been peeked at in transit, and riding that horse – among others – to majority status in Congress, the new leadership swiftly extended the program for six months, and then again for the better part of a year attempting to suss out the best way to spy on our enemies while preserving the trembling balance between civil liberty and national security. The Senate recently voted by a healthy margin on a bill that would do just that, while also protecting US telecoms from ruinous lawsuits. These corporate citizens had intuited that “social responsibility” might mean more than buying fair trade coffee beans from Starbucks. It might also mean pitching in when your democratically elected government asked you for help preventing your fellow citizens from being immolated.
Which senatorial codicil proved a deal breaker in the House of Representatives: Speaker Nancy Pelosi declined to bring the Senate bill up for consideration before Congress went on recess. In the WaPo today, Robert Novak follows the money:
The nation’s torts bar, vigorously pursuing such suits, has spent months lobbying hard against immunity.
The recess by House Democrats amounts to a judgment that losing the generous support of trial lawyers, the Democratic Party’s most important financial base, would be more dangerous than losing the anti-terrorist issue to Republicans. Dozens of lawsuits have been filed against the phone companies for giving individuals’ personal information to intelligence agencies without a warrant. Mike McConnell, the nonpartisan director of national intelligence, says delay in congressional action deters cooperation in detecting terrorism.
Big money is involved. Amanda Carpenter, a Townhall.com columnist, has prepared a spreadsheet showing that 66 trial lawyers representing plaintiffs in the telecommunications suits have contributed $1.5 million to Democratic senators and causes. Of the 29 Democratic senators who voted against the FISA bill last Tuesday, 24 took money from the trial lawyers (as did two absent senators, Hillary Clinton and Barack Obama). Eric A. Isaacson of San Diego, one of the telecommunications plaintiffs’ lawyers, contributed to the recent unsuccessful presidential campaign of Sen. Chris Dodd, who led the Senate fight against the bill containing immunity.
It’s hard to come to any other conclusion but that tort bar thinks it can wrest more money from US corporations for the crime of having done their bit in the war on terror than the bar would have to pay Congress for the privilege of doing so. Flush with their winnings, they’d be free to donate even more to the good fellahs in Washington who made it all possible. Win-win, so long as no new terror plot goes undiscovered.
The old program was not self-evidently illegal, as demonstrated by those temporary Congressional permissions for it to go about pretty much as it used to do. And if the best legal minds in the country can spend an inconclusive year attempting to get the privacy/security balance right, is it any surprise that corporate lawyers erred to the side of caution with governmental assurances in a time of crisis? After all – while this might come as a surprise to those allies of Dennis Kucinich who think that nothing can be true if W also believes in it – not everyone in America instinctively views the President as a 21st century Sauron made flesh.
Depending on your view of privacy rights vs. public safety, the horse may have gotten out of the corral for a while under the President’s original program, but it has been well and truly brought to harness in the mean time. Since the surveillance program would have come under both congressional and judicial scrutiny under the Senate’s bill, the only plausible reason to leave the retroactive immunity provisions out of the House version is not a high minded desire to prevent the telecoms from future excesses in cooperative zeal, but to let the tort bar rummage through their corporate wallets.
Letting the wire go dead for a few weeks is a gamble of course, but the possibility of an undetected terrorist plot costing thousands of American lives has to be weighed against the certainty of all those millions rolling in as campaign donations during an election year.
I guess that’s a risk worth taking.
So, in the end I will be subsidizing sleazy lawyers and politicians (redundancy alert!) every time I use the phone.
Those legal costs will assuredly get passed along to the consumer post haste.
Not to mention my involuntary complicity in the next attack.
Thanks, Nancy. May you rot in hell.
First rant didn’t take, due to the apparent server problems.
I work the information gathered through these programs every day. I know what hairs on a gnat’s ass NSA analysts are required to split to satisfy the lawyers who go to these courts. Anyone who believes that NSA is playing fast and loose with anyone’s civil liberties is completely ignorant, and in this case maliciously so.
The result of Pelosi’s stunt truly frightens me, because what it boils down to is this: any foreign terrorist, someone who was never under any conceivable stretch a “US person” entitled to any constitutional protections, can now plan freely with any other foreign terrorist, so long as he uses a US provider. Which means that US citizens, sworn to uphold and defend the Constitution, now have to go to a US court to get permission to monitor the evil plans of our foreign enemies.
This is truly horrifying.
Wrong. Wrong. Wrong.
Just plain wrong. On all counts.
The real issue here is not counterterrorism. Nor is it that perennial whipping boy of trial lawyers. The main issue is a grant of immunity for violating federal law.
If Novak really “followed the money” he would note extraordinary suspicious, quid pro quo instances like this.
Yes, telecoms are huge lobbying and campaign contributors (as indeed also are trial lawyers). Unfortunately as a result, we are becoming (are?) no longer so much of a Democracy, but rather a Corporatocracy
There are many good reasons why there are so many well-deserved lawyer jokes. The main one is the fact that the only winners in a court battle are the lawyers (on both sides). They bill and bill and bill.
However, I have hopes that our intelligence community is not totally taken over by those who wish to turn us into a helpless arm of the UN. Those ME cable interruptions (4 or 5 in rapid succession) make me wonder where SSN-23 has been lately. One way to ensure that the lawyers cannot get involved is to tap the lines before they reach CONUS. There is a lot (un)said in the URL
https://www.navy.mil/navydata/cno/n87/usw/issue_5/ussjimmycarter.html
Which I am rather surprised I can find through Google and read unhindered. Multi-Mission, hmmm.
My hope springs eternal.
Unlike Edward, I do not wonder where SSN-23 was during the undersea cable outages last month. It is silly to think that we would need to break a cable (and thus interrupt service) to tap it, there is better technology available, as Lex alludes to.
I also don’t believe that we are under a greater risk because the Protect America Act (PAA) has expired. All existing taps remain and can remain for up to a year. Perhaps some fast developing situation may take place, but aren’t we winning the war on terror? The original laws that were enacted post 9/11 had expiration dates for a reason. A permanent pass for the government to conduct warrantless wire taps basically shreds the 4th amendment. I think it is correct for congress to take there time and get the legislation right. Besides, W had a chance to pass an extension but declined. I am not so cynical to think that trial lawyers have unduely influenced congress into inaction so they could make more money.
Well, if it was federal law that was violated the injured party would be the federal government. Which, so far, has declined to play the victim card.
Your corporatism argument may well ring true, and there’s blame enough to go around but it is non-germane to this discussion: The issue absolutely is counter-terrorism. Listen to the non-partisan, naval officer veteran DNI director Mike McConnell, a man with 40 years of military and government service under multiple administrations (He was Bill Clinton’s NSA director):
More here:
That’s not just comms with one end grounded in the US, that’s comms that begin and end abroad that we can’t access because our pipes have so much capacity that the data might have passed through it. It’s absurd.
I often admire your ability to buckle on the shield and fight the Party’s fight even while disagreeing with the substance of your argument – but not in this case. This is simply indefensible.
While much of what you say is accurate and true (and here is where I’ll annoy Snake, you and others), the flaw in the ointment comes from the fact not all telecommunications companies complied with NSA’s warrantless request for access to data. We may not even know which ones. We don’t know what the techno-uber-geeks at No Such Agency looked at or excluded from their searches. I have a problem with that, even while part of me understands it.
Last time I checked, the Fourth Amendment requires the existence of probable cause before one’s privacy may be invaded by the gendarmes. There is a mechanism, under the old law and currently, which allows eavesdropping to be retroactively authorized if permission is sought within 72 hours. There is no gap. There is also no excuse for following an unlawful order, see e.g., Lt. William Calley
Furthermore, isn’t this a prudent position?
Especially since the FISA Court’s powers were expanded after 9/11 to allow the issuance of warrants for criminal investigations, not just inteligence gathering?
I’m just asking?
OAM, what Bill of Rights protections do you propose extending to foreign citizens in foreign countries whose communications on ways to slaughter American literally passes through our hands? And would those privileges, however gratefully received, trump the Article II rights of the Commander in Chief to pursue intelligence as a necessary incident to the conduct of war?
By the way, one of the powers now lapsed permitted the government to compel telecoms to provide the data – now we’re back to letting individual corporate lawyers decide whether or not to help the government protect the country. The same sort of lawyerly quibbling by the way, that enabled Clinton-era lawyer Gorelick to erect the infamous “separation wall” between intelligence and law enforcement efforts to protect national security. We know what that led to.
FISA is normal legislation, not a constitutional amendment:
This should be interesting. Let us posit a scenario: If the FISA law is not re-enacted, and it can subsequently be shown that a large number of Americans lost their lives or suffered, would there not be a class action suit against the US govt?
Would the aforementioned pols not grant immunity to themselves.
Flitterman: When business cooperates for the greater good with the US government, it makes sense that those same businesses can and should ask that government to protect them from the predatory lawyer class seeking to profit based on that same cooperative act. That doesn’t make it a corporatocracy….although it is a fact that the US government has insterted itself into so many areas where the Constitution really did not intend for it to go, so that now big business has to come to government to seek help in a number of areas that really do not rightly belong before the federal government. It’s all part of government doing everything it can to insert itself into all our lives in every way and to get money from anyone dealing with it and the asses that run it.
I ‘ve spoken my piece over at Phibs place and on my own blog. Just remember that whatever you give over to the federal government-you NEVER get back.
I think there are 3 issues that need to be addressed:
1) Oversight-the Senate bill gives the administration a blank check as far as I can see. Show me the protections that are supposedly built into the bill.
2) It is an Ex Post Facto law and those are specifically prohibited by the Consititution.
3) The TELCOMS broke the law. And they broke their contractual obligations to their customers to protect the privacy of the individual information they held.
The real issue here is how much you trust the federal government and how much you believe that the protections built into the Constitution to protect citizens rights will be respected.
That can have an honest discussion without accusing those who favor the Constitution being branded as murders and terrorists supporters. I am no more of either than those who support the Second Amendment.
Finally so long as we quoting Mr McConnell I’ll remind you of his quote from Feb 15 before he was given the script:
“This is not about security, that’s not the real issue. The issue is liability protection for the private sector.”
The bill was given to the President-he chose not approve an extension.
Skippy, the protections are being put in to prevent ex-post facto application of future laws implemented by politicians that don’t think beyond the next day, not the other way around.
They also did not break the law (as the law, through the courts is still being determined in most cases) nor did they break the contract signed by the customers.
Read your EULAs for a cell phone (or other wireless device). There are no guarantees other than that they won’t sell your credit card number. Of course they want protection from liablity, especially on a topic where the companies could get screwed over by a politicians whim. To ask for anything less WOULD have them violating several laws and shareholder agreements.
Lex is correct. Both Skippy and OAM, you can’t argue this on constitutional grounds because the people affected are non-citizens. Last time I checked, they are not afforded any written protection from that lovely document. If we were being true legal eagles about this, we could apply their own countries laws on this one, in which case the freedom to act is much larger.
So you accept it as a matter of blind faith that the authority will not be used on citizens? I don’t. Someone has to show me how this authority cannot be abused by someone who wants to.
The evidence is pretty clear that the TELCOMS turned over information on citizens as well as non citizens-there is clear evidence from AT&T employees they turned it all over to the NSA.
The TELCOMS -at least the Bell System used to have a tradition of respecting indivdual privacy.
Seems to me to be asking a lot of this or any subsequent administration not to abuse the authority that has been asked for.
And lest there be any doubt-China has shown us where it leads…………….
Skippy, I do not, that’s why I enjoy my second amendment rights
On the same token, if they are going to abuse the authority, they won’t bother with the law in the first place, it will just be done. Why tell the plebs? If the authority is going to be abused, it will be, unless there is oversight by citizens, not politicians. I do agree with you that this bill does need more in that department.
The Bell system used to have a tradition, but technology has changed to the point where the processes of getting taps haven’t caught up. “Burner” cell-phones in the drug trade have worked wonders.
SteveC: Business doing something for the greater good? Not likely. Business does things for the bottom line. Terrorist attacks are bad for business, they create instability and stock values fall. That is likely the discussion you will hear in the board room of ATT et al. It is risk vs. benefit analysis pure and simple.
Parsing the T-carriers for information not destined to or coming from the US, I suppose that is one way to look at it, but it would be very difficult to separate that traffic out from traffic that is destined to or originating from the US. Once the “tap” is in place, all the traffic on any individual trunk gets duplicated and exactly what happens to the data that is sent down the government wire? Who really knows?
Once in place it is a slippery slope.
Corrupt, power-hungry, self-serving, care nothing about the underclasses they seek to enslave through continued dependence, lie through their teeth and tell the mindless can’t recognize Dick Chaney’s photo but instantly identify Brittany Spears whatever they want to hear, don’t matter what (or if) you say as long as it sounds good, low life sleazebags!
I think it’s time we declared that lawyers involved in writing laws is a conflict of interest and be done with it. That way, common sense might re-appear in the system.
Just the facts, is the way Sergeant Joe Friday would approach a potential witness in the old TV show. To wit:
A temporary law (PL110-55) allowed expansion of the benchmark FISA law, and was set to expire unless renewed this past February 16th. When the Senate after debate approved, and subsequently the House of Representative balked, the issue had nothing to do with surveillance of terrorist, and everything to do with the rule of law. To wit:
Both Director of National Intelligence Michael McConnell and Attorney General Michael B. Mukasey sent a letter to the Senate saying they would urge Bush to veto any legislation that does not include retroactive legal immunity for telecommunications companies being sued for their alleged role in the administration’s warrantless surveillance program.
Yup, you got it. The issue is not protect America, the issue is protect the telecoms. Slice it, and dice it, if the government convinces you to commit a felony crime, you should be granted amnesty. Turns out that by giving amnesty to the telecoms, what the government is saying: “Hey Mon, anything we are doing that is illegal is for your own good, so suck it up, give us a round of applause, and vote for us, we are your protector.”
Turns out that the above is not the real issue. The issue is how long are we going to allow folks to stand up parrot the governments malignant songs. As the Washington Times, and others have pointed, allowing the temporary PL 110-55 to lapse poses no threat to the gathering of intelligence. Previous approved surveillance warrants are not invalidated, any new warrant will only require a Court order. Our vaunted defenses against terrorism have not been weakened.
To wit: A tempest in a teapot? Another attempt by our ruling powers to scare the bloomers and knickers of the populace? How crass of me, Lex of course not only scares the pants off us, but provides an answer:
By the great white J man, the lawyers are going to make millions suing the telecoms for illegal activities, and donate millions during this election year to whom ? Must be to nefarious undemocratic groups!.
Meanwhile, the patriotic telecome companies (two out of three, let us remember that Qwuest refused to cooperate, and soon there after their CEO was indicted for stock manipulation) have but the only all American option when trouble brews: As fliterman points out, buy a Senator.
With a bow to fliterman, once a marine, skippy-san, and others. And because I am in a real nasty to wit mode: Seeing that Attorney General Mukasey has difficulty in defining torture, feels that immunity should be granted to telecoms, and will not enforce any congressional requests for witnesses, any chance we can get Monica Goodman back?
re: The issue is not protect America, the issue is protect the telecoms.
This is the sort of thing that really drives me to despair, the insurmountable weight of self-important cynicsm. The lame duck president of the US of A is bending over backwards to protect the telecoms from the rightful wrath of all those disinterested tort bar lawyers. Because.
And cooperating with your government in a time of war is a crime. Not because any crime has been litigated, far less proven. But because – and now there actually is an answer to complete the statement – the executive is currently in the hands of a political party whose views you find uncongenial. Which, Constitutional separation of powers be damned, itself makes their actions illegal. When Truth and Light are on your side, policy disagreements are teh criminal!!1!
As an example of solipsistic, breathtaking arrogance, it has few peers.
You know, I have had my issues in the past with the President and his party – steel mill subsidies, Harriet Miers, earmarking, deficit spending, diddling the pages, a “wide stance,” etc. I wonder: Is there anything that the Democratic Party might do to draw your denunciation OP?
Or are they really all angels, every one?
Oh, and then there’s this: By the great white J man, the lawyers are going to make millions suing the telecoms for illegal activities, and donate millions during this election year to whom ? Must be to nefarious undemocratic groups!
Well, let the scales fall from your eyes, St. Paul:
Anti-democratic? Not in this Republic. Self-interested? Sure.
You got an edge on me Lex, it is 11:45 PM here is Rochester, and like Hal, the fabled computer on a fabled space flight, the computer between my ears is closing down. I can only leave you with a couple of thoughts:
No matter how you slice it, dice it, or spin it — If the government colludes with an individual, a group, or a corporation to brake a law, and states that its reason is to “protect us”, or that it is “for the greater good”, that government can do anything it pleases, to anybody it wishes.
And you may wish to relegate me to some “nut fringe” that haunts your worst dreams, but guess what…. That same government that colluded with the telecoms to subvert established laws, has no problem kidnapping folks in foreign lands, against the laws of those governments, and telling us Americans, you and I, that this is not kidnapping, this is extraordinary rendition.
I just want you to think of Augusto Pinochet, brought to power in part by the US of A, who thought torture, murder, and the killing of those who opposed him was AA OK, even if such killings occurred in our own country. Even when a car bomb exploded on a main boulevard in Washington DC killing Ronni Moffitt and Orlando Letelier, he thought it was AA OK. Guess what, so did the government of the US of A, for they did nothing…
It took over 40 years, but that horror of horros, that monster in your closet, European Countries, started to take a measure of the great General. Sorry Lex, today Chile is free of that monster, and (gasp) has a women, divorced, with socialist tendencies, as its President… It is even worse, Pinochet is recognized as a monster…
Turns out it was not my pappy, but somebody else, probably one of those real old time Greeks we keep reading about, or maybe some Frenchman, who said “If you do not know your history, you are bound to repeat their mistakes.” Or, something like that…
If our government, it is yours and mine, states it can violate established laws, you can chose to defend it, and I can chose to question it. Concentrate on the issue, not my “solopistic, breathtaking arrogance”. If our government choses to spy on its citizens, it can be compared to others. If our government choses to torture, it can be compared to others. If our government choses to put its political prisoners on some far of Island, it can be compared to others.
Criminality, like Art, is in the eye of the beholder. I will argue against your view, and you can argue against mine… But please, do not denigrate me as some weird man who is not a patriot…
It could be today, or next week, or on a clear morning in mid-September, but you and I both know it’s going to happen again. Playing defense, you have to be perfect. The guys on offense just have to keep trying until they get smart or lucky, and they will hit you.
It’s something to keep in mind as our politicians natter on.
“As the Washington Times, and others have pointed, allowing the temporary PL 110-55 to lapse poses no threat to the gathering of intelligence. Previous approved surveillance warrants are not invalidated, any new warrant will only require a Court order.”
Horse-hockey! Yes, existing warrants continue… until they expire. Even FISA-warrants aren’t open-ended, they have to be renewed, and won’t be renewed if the court isn’t shown that the collection isn’t exactly what it’s supposed to be.
“Any new warrant will only require a Court order.” As stated earlier, since when is a Court order needed to conduct surveillance on non-US persons, especially ones not resident in the US? That’s called espionage, not surveillance, and historically the courts stayed out of the espionage business as properly belonging to the executive branch.
As for the demands that NSA “guarantee” they won’t go trampling your liberty, get real. I know what is required for a FISA request. The lawyers at NSA won’t even take it to the FISA court if all the gnat’s ass hairs proving no USPER is involved haven’t already been pre-split in triplicate by the analyst making the request.
The risk is real that Abu in Islamabad chats with Ahmed in Istanbul on gopakistan.com (managed by some ISP in Malaysia) — see any USPER involvement yet? — and we get good indications from another source that Abu plans to kill some Americans, the plans are in work and the op is to take place soon. Guess what? Now we have to go through the lawyer dance, in triplicate, to go to FISA court (FISA, you know, the court set up to protect the rights of US CITIZENS) to get permission to listen in on foreigners planning to kill Americans.
Yes, there are some real concerns about the potential for abuse of these powers, but you all act like you’re the only ones who care for Liberty. Like none of the thousands of Americans who use these tools daily, Americans sworn to defend the Constitution against all enemies foreign and domestic, care about liberty. I guess only you guys on your high horses care, the rest of it are just in it… for what? Telecom money? Tell you what, I’ll treat you all when my check arrives.
It’s beyond a gamble. It’s a different world today than it was just 10 years ago let alone 200+. I’m sure the framers of our Constitution could have never envisioned the world we live in; they would no doubt bend over and vomit at what the world has become.
Speaking from the very personal position of knowing what it feels like to have someone we love be killed by those terrorist monsters on 9/11, I hope with all my heart that no one in Congress ever knows what it feels like to watch video of their loved one being slaughtered. Should the unthinkable happen to them, I hope they rot from the inside out with guilt at leaving our country vulnerable like this. We were asleep at the wheel pre-9/11 – will it take another 9/11-type attack (or god forbid worse) for these idiots to understand the world really is different.
I really hate the scare tactics and the accusations that those of us with concerns are somehow given to supporting Islamic terrorists. It just is not true and it is a huge disservice to those who have raised legitimate concerns.
The PAA act only came about because the adminstration got caught with its hand in the cookie jar. Otherwise there would have been no bill at all and the adminstration would have continued to act in secret-with no oversight whatsoever. Which is just what they want.
Second, seems to me if its an Malaysian IP- Malaysia can act without US warrants and so too can the NSA.
But this discussion is not about a Malaysian IP-it is about US IP info-with information on you and me and a whole lot of other people that has already been handed over to the federal government-in violation of at least 4 federal laws that I know of and the 4th amendment.
To say this applies only to non-US citizens is obscuring the fact that info on US citizens is now where it does not belong. With the willing complicity of the TELCOMS who have had some legal defeats on this issue already thrown their way. That’s why they are pushing so hard.
Besides if the act is so important-why not pass it without the immunity and then if the Adminstration has the votes for it-pass the immunity as a seperate bill allowing time for honest debate.? That is actually a reasonable position-especially since any court can hold a lawsuit in abeyance till that issue is resolved. Funny, the act that lapsed can be signed tomorrow-but GWB and his folks don’t want to hear of that compromise.
The bottom line is that warrantless surveillance can crank up any time the President wants to play ball. Especially since every arguement for blanket retroactive amnesty that has been advanced is either groundless, or can be addressed through appropriately tailored legislation.
Skippy, from where I sit, it is exactly about the Malaysian ISP. Because of the fluke of internet routing, their packets may or may not touch a router owned by a USPER, or on American soil. But the FISA court never had jurisdiction over non-USPERs, and now it does. Is that a wise thing, Skippy? Future presidents having to submit intel collection requirements to civil courts for review?
You want to wrap yourself in the victim’s mantle — who accused you of supporting Muslim terrorists? Name him, I’ll back you up against him. But you want to tar the rest of us with being unconcerned with Constitutional law and as proponents of “warrantless surveillance,” go cry me a river.
I repeat: what has always been understood to be conduct of war, that is, espionage, is now subject to civil courts. Where in the Constitution are the courts granted any power to regulate the conduct of warfare?
Skippy, I agree on what the President could have/should have done. He was playing politics to make a point. But Pelosi and her gang are also playing it on the other side. Which leaves them all equally guilty in a way. Let’s just hope that something important isn’t missed due to politics and appearances and the absolute need to do things my way.
And as far as those evil telecoms illegally invading your privacy, weren’t they complying with a federal law, valid on it face? And which still hasn’t been found otherwise, as I understand it. Are they really expected to know the law better than the federal lawyers? How were they to know it wasn’t valid? And what would be your response to corporations routinely snubbing their nose at various laws because they don’t agree with them, they think the particular law was “illegal”? Since when did corportaions or individuals become the arbitrators of what is legal and what isn’t? I really don’t see how you could reasonably expect them to respond other than as they did at the time. And just because one company refused … well, maybe that’s the one that should be prosecuted for failure to comply with the law.
OP, re: — If the government colludes with an individual, a group, or a corporation to brake a law, and states that its reason is to “protect us”…
A conditional “if statement” that I reject, OP, rendering the rest of your hyperventilation moot. Things aren’t illegal because W does them and OP thinks he oughtn’t – we’ve a different legal standard. There is clearly a tension between the core power of the executive in time of war as established in his Article II powers and the 4th Amendment bill of rights that protects US persons and that tension has not been finally adjudicated.
I’m not trying to denigrate you personally – at least I hope I’m not – but while I can enjoy in a sere, ascetic way our clashes over, say: single payer health care, I find the partisanship applied to national security somewhat less pleasant. We are all sworn to support and defend the Constitution, and the implication that I am secretly lobbying for its overthrow I find objectionable to a degree that might spoil my intended complaisance as your host.
The president’s administration has never agreed that they had been caught with their “hands in the cookie jar” trying to protect American lives, and only agreed to negotiate with Congress thinking to put the whole absurd farce behind us and get back to smashing bugs. The mistake they made is believing that the Congress could ever negotiate in good faith when afflicted by the same kinds of hysterical derangement and partisan animus on display in these pages.
You look at George W. Bush and see Augusto Pinochet, OP. I look at the two of you and see a man who needs a new pair of glasses.
Actually it has been ruled in at least one federal court that AT&T violated 2 federal statutes:
FISA, and the Communications, Wiretap, and Electronic Communications Privacy Acts.
The 9th Circuit has ruled that those that said no were acting within the perogative of current federal law.
Zane, even if I accept the assertion that FISA has placed courts in oversight of non-US citizens ( which is a claim that bears further scrutiny) how do you deal with the fact that information on US citizens was handed over in violation of US law and contractual obligations?
I just do not understand why a system of checks and balances is such a bad thing-even if all the employees involved are of good will and due diligence.
Seems to me the evidence that is available in the public domain., points to the fact that FISA Court has sided with the Attorney General and NSA most of the time. And FISA has been updated repeatedly since 2001.
So why are checks and balances that bad?
This is not about rights or breaking laws. It is specifically about civil torts. The trial attorneys want to bring class action suits against the telcoms for money, pure and simple.
The proposed immunity was about civil suits only.
The 9th Circuit is the most routinely overturned circuit court in the land. To reiterate, Congress cannot through normal legislation trim the executive’s constitutional power.
To return to the issue at hand, why cannot Congress agree to the Senate bill that passed with a solid majority and close the curtains on this drama?
Because money talks.
Lex,
It is not up to the adminstration to decide what is and is not within the bounds of the law-it is up to the Supreme Court. Which is where this thing is eventually going to have to go.
Yep money does talk. AT&T is a company whose market capitalization increases by $488 million when its stock price goes up $0.01 and which realized $3.06 billion in net income in the last reporting quarter of 2007.
So they can afford to spar a few rounds in federal court.
I’m sorry, but how does the re-authorization of FISA trim the powers of the President under Article II. That Article, under section 2, makes the President the Commander in Chief of the Armed Forces. Where does that power usurp the limits of the Fourth Amendment? Where is the President authorized to demand private companies (potentially) break the law? Maybe I’m just too stupid to understand.
My concern, and that of others above, is the overbreadth of the net being cast by intelligence services. FISA was originally enacted to curtail the unlawful surveillance conducted by J. Edgar Hoover. Where are the protections afforded by warrantless surveillance that other groups or persons who disagree with the Administration are not being monitored? There are none and that is the point of the concern.
Whether the 9th Circuit or the 11th Circuit are the most overturned Federal Appeals Courts in the country does not diminish the judge’s obligations to follow the law, as we all must. Some commentators have surmised the 9th Circuit gets overturned so often because they tend to follow precedent which the Supreme Court then rejects or distinguishes (by the way a majority of the judges on the 9th Circuit were appointed to that Court by George HW and Reagan, not by WJC).
To the point that money talks and BS walks (and Heaven knows I get fussed at enough for missing the point or arguing the wrong point): Plaintiff’s Lawyers are limited by law in the amount of money they can individually give to any particular candidate or political party. They can contribute to other groups which then advocate on their behalf, just like any other individual or group. However, they only make millions on these claims against the telecoms if the telecoms broke the law or breached some other duty to the lawyers’ clients. If the lawyers are wrong and the telecoms did nothing wrong, then there is no need for immunity because the lawyers will make nothing from these claims.
Back to the point OP, Skippy and I were trying to make before we got excoriated: We don’t know (perhaps for good reason, perhaps not) what if any information on U.S. Citizens was gathered during this process. And to the question of the application of the Constitution to non-U.S. Citizens, the Supreme Court has answered that if the government conduct occurs within the United States the Constitution controls the limits of that conduct. United tates v. Verdugo-Urquidez; Reid v. Covert. The dispute in Congress and in the reauthorization bill is not over surveillance of foreign nationals by federal officials and officers, it is a dispute over access to the electronic communications of United States Citizens and others within the borders of the United States in violation of the Fourth Amendment and statutory law. The hyperbole over surveillance of foreign nationals is a red herring and not germane to the dispute or the concerns I and others have raised.
Woke up this morning a bit out of sorts, wondering if I had over stepped the bounds of propriety in my post last night. Sure enough, in bold letters, at the bottom of my post: Your comment is awaiting moderation.
And so to all readers, if my words offended, accept my apologies.
It was September 11th, 1973, that Regime Change, with a tad bit of CIA help, occurred in Chile. It is said that slightly over 3000 people lost their lives, and certainly many more were forced to flee. It was crude of me to point out that Augusto Pinochet was universally despised as a torturer. I am still trying to figure out why I thought these facts were relevant to the current discussion.
And thus, I stand chastised in front of you. It was nothing other than a despicable character flaw that lead to my questioning those who protect all of us. After all, we have been told all sort of authoritative figures, including the Prince of Darkness himself (extensively quoted by Lex, above), that illegal surveillance has saved thousand of lives. And that it is a dark plot by trial lawyers and Democrats who have visions of untold millions for their greedy unpatriotic pockets when they oppose amnesty for the telecoms. Silly of me not to believe them…
I, like ASM826, and Zane, and others fear further terrorist attacks. It is criminality gone wild. But, be happy in your work, Amtrak has announced Armed Guards will be patrol Railroad Stations, and that luggage may be searched.
Interesting comments on this subject. Even more interesting than the original post I agree with.
I’ll go with someone’s opinion working the problem every day- really-in the real world. Not pontificating as cover for political leanings or because it’s like a logic assignment in college.
I’ll go with what Zane says.
b2
OP, your post was held in moderation automatically because it contained two embedded links. Happens to me, sometimes, when I embed more than one link in my comment.
OP, your comment is not held in moderation because of any character flaw, nor less because I want to see what you’ve written before letting you through: It is a quirk of the spam filter that it sometimes lets people through and – often on the same day – demands further proof of their physical existence. I’ve only banned two or three people in nearly five years, and you haven’t begun to cross into that territory – but the spambots routinely churn out the most vile madness and thus the imperfect moderation scheme must be tolerated as the lesser evil. The rest of your sarcasm however, falls heavily flat. You would do as well to analogize Hitler and Mother Teresa inasmuch as they both had two feet, but it would not do much to recommend your argument, nor your sense of proportion.
OAM, there’s the crux of the argument: The president has CINC powers under Article II which are expanded rather than otherwise by the legislature’s authorization on the use of military force. Gathering signals intelligence in a timely fashion is an incident to that power. Congress cannot through normal legislation (i.e., FISA) restrict the Constitutional authority of a co-equal branch of government.
Skippy-San is right on the legal aspects, even if his characteristic brand of class warfare and anti-corporate populism is once again on display : The only way to solve this is to argue it before the Supreme Court. For rational reasons, both Congress and the President are loth to put their power to that test in a time of war – they both have too much to lose.
The answer was a compromise on legislation updating FISA, protecting individual rights and providing for national security. That has had a year to run and cleared the Senate with a healthy majority but sputtered and died because, in my opinion, the House leadership kow-towed to one of their prime sources of campaign funding.
Based on a discussion (tinfoil hats recommended) of the cable cuts and a subsequent questioning of SSN 23’s location, it was ascertained that she was “tied up in dock” at her homeport.
http://www.reuters.com/article/topNews/idUSN1925683320080219?pageNumber=1&virtualBrandChannel=0
MOOT POINT ALERT! The Supreme Court recognized the point I made earlier, that this is not the court’s fight. Now, they made a point by picking this particular case to wave off on, but most importantly they recognize this is a squabble between the executive and the legislative to resolve, not the judicial. If Congress doesn’t like how the President is interpreting their laws, then they can write the laws to preclude his interpretation, or take away his money, or any one of a number of enumerated Constitutional actions. I may be wrong, but the way I read the result of the Supreme’s Court action is that the President is not bound to refer any wiretapping decision to the FISA Court. Maybe I’m wrong, but I can’t help but think… How do you like them apples, Nancy?
By choosing this case to bow out on, however, they have left the second highest appeals court as the court of record–the President broke no laws and acted within his authority.
As for the alleged contractual agreements between telecoms and their customers, there’s a lot of fine print in there. You know, doubleclick and Google collect more on you in a week than NSA probably ever has, even in those “vacuum cleaners” they’re always said to be operating. Under the circumstances, though, I’ll put my money on the telecoms’ hired guns versus the trial lawyers’ associations guns.
Zane out. And B2, thanks for the vote of confidence.
Same Supreme Court that would not hear the USFSPA challenge and also said that my alma mater had to admit women. No wonder the right wing says getting the right judges matters-they may be onto something.
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It will be back in court again I assure you-seems to me there are two other issues that have to be explored-did the PAA violate the privacy laws and does the President have a blank check absent a Congressional declaration of war. Just means they will have to find a better legal vehicle.
As for Google and mouse clicks-that it seems to me proves my point about the danger. This is the same Google that gets on its knees for Communist China every day. What that does prove is that technology is easy to abuse without protections. E.G. go there and link to Cecilia Chung pictures and wait to join your compatriots in jail because both the government and the Triads don’t like you doing so.
That means it is between Congress and the President, which if past legislative battles are anything in the way of an indicator, the House will fold like a cheap suit when they come back. So not to worry. However NSA will still have a few million records it never had a right to, and now does not have to explain why it has them or what it did with them.
President Obama will enjoy having access to domestic files as well.
The argument re: constitutional issue or executive privilege is an interesting one. I strongly believe that it is a constitutional issue and in light of 9/11 it is especially important that the power of our constitutional rights not be eroded.
Nowhere that I can find in article 2 of the Constitution does it say the President gets to do what ever he wants. Further, we are not in a declared war, as defined by the Constitution. Congress did give the president broad powers to combat terrorism back in 2001, which should now be held out as a prime example of why it is bad to write blank checks.
Further, as stated already, an extension is ready to be signed at any time, while the details of the new bill are worked out. If you believe, as I do not, that we are in grave danger of a terrorist attack because the PAA has lapsed, the W himself is also accountable. By arrogantly refusing to sign the extension, he has also put us at risk, if there is one. The House is not a rubber stamp chamber of the Senate. Both institutions are equally in their right to debate, pass or fail to pass any legislation independently.
The FISA is about accountability and not allowing the government to have a blank check or giving huge mega rich telecommunications company’s a free pass.
Zane, with regrets, I don’t think that the SCOTUS rejection of the ACLU case is dispositive on the merits at hand since the court merely swatted aside the complaint on the grounds that the ACLU couldn’t prove standing. If someone can prove actual harm, then we’re right back in court with a bunch of the usual suspects lining up to file amici.
Paul, the Constitution doesn’t anywhere that I can find state the power to “declare war” requires a “declaration of war.” When Congress voted to approve an authorization of military force, they used language – perhaps deliberately – that isn’t in the Constitution either.
Which is as much to argue that an AUMF is a kind of declaration of war, and no one has seriously argued otherwise. Or else how do we find ourselves continually rotating forces into combat going on seven years in Afghanistan, and five in Iraq?
The Constitution *is* however, clear on the Article II powers of the presidency in a time of war, and Congress’ only recourse is the power of the purse, oversight hearings and Title 10 regulation. Which ain’t nothin’.
Put another way, the Founders were unambiguously clear that there’s no room in the Constitution for a 535-man council of war to say you can *kind* of go to war, but that the president can’t gather intelligence on foreigners abroad.
Corporations aren’t evil for making money, and they already pay their taxes before the civil suits try to prise more away. And they aren’t evil – in my mind anyway – for acting in good faith to help protect America when the government asks.
I’m sympathetic to privacy concerns and the risk of untrammeled executive power in what seems to be a generational conflict. But the president threw Congress a bone on FISA to get it off the table and gave them a whole year to get their sh!t together on a matter of vital national interest. After a full year authorizing that which they had previously claimed to be patently illegal, they chose instead to spend the balance of the time given them in charades, theatrics and baseball hearings. Before going on recess and leaving the whole thing unsettled.
I’m sick of ‘em.
Lex, Agreed that Congress holding hearings on steroids and asking questions about Roger Clemens’ butt is
almostcriminally stupid. Also agreed that it is taking way too long and the grandstanding is sickening.I will even go so far as to say data that is merely “passing through” the US, originated from and destined for foreign lands may be fair game under certain circumstances.
It requires oversight. It is not that I don’t trust the operators at No Such Agency, actually I do. I don’t trust their politically appointed bosses. On this point, we may have to gentlemanly disagree.
“I have never knowingly taken steriods”
http://thenewlifeofnancy.blogspot.com/2008/01/i-have-never-knowingly-taken-steroid.html
re- “It is not that I don’t trust the operators at No Such Agency, actually I do. ”
Sure.
b2