Blue Mass Group

Reality-based commentary on politics.

Congress caved. We’re suing.

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For the record, here’s the text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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  1. Good for the ACLU for challenging the constitutionality of the prospective parts of the bill, i.e., the parts that curtail FISC oversight. Having a secret court is maybe a necessary evil in intelligence matters, but we can’t make a mockery of the court by rendering it a toothless rubber-stamp.

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    p>On the other hand, I’ve never really understood the hullabaloo about retroactive immunity for the telecommunications companies that provided information to the government at the government’s request. I don’t know the detail of the law on this, but their conduct doesn’t strike me as particularly blameworthy in an everyday sense. Maybe the companies should have said, “if you want information about our customers, come back with a subpoena,” and certainly they would have been within their rights to say it. But as I understand it, it’s not as though the companies acted as informers who approached the government with the goods on their customers; they responded to the government’s requests. So perhaps immunizing them is a reasonable political judgment to make.

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    p>I do think, though, that the ACLU could mount a technical challenge to the immunity provisions of the bill. For example, the bill would deprive states of the power to investigate telecommunications companies’ cooperation with the federal government. Is that constitutional? The bill would also authorize “removal” of cases against telecommunications companies from state courts to federal courts on the grounds that such claims are “deemed” to arise under federal law, even if the plaintiff expressly says he is suing under state law. Is this constitutional? (There are cases in which this kind of “complete preemption” is permissible, e.g., employee benefits law, but there are still obvious federalism concerns here).

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    p>So my bottom line is: (1) the ACLU is right to challenged the weakened provisions for FISC review; (2) the ACLU may have grounds for challenging the retroactive telecommunications immunity provisions, or at least some of them; but (3) I am not particularly worked up about the telecomm. immunity issue.

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    p>TedF

    • Whether they initiated the idea or not, what they did was (at least at the time) illegal.  It’s sort of like if the government had asked them to steal money — the fact that they were asked to do something illegal shouldn’t let them off the hook for going along with it.

      • I get your point, and I don’t disagree. I guess all I was saying is that I’m not up in arms about this aspect of the FISA fiasco. I think everyone would agree that when the government came calling, the telecomms were, at a minimum, faced with a difficult and murky choice, even if, as you say, what they were asked to do was illegal.

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        p>TedF

        • made the right call at the time.

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          p>

          Among the big telecommunications companies, only Qwest has refused to help the NSA, the sources said. According to multiple sources, Qwest declined to participate because it was uneasy about the legal implications of handing over customer information to the government without warrants….

          According to sources familiar with the events, Qwest’s CEO at the time, Joe Nacchio, was deeply troubled by the NSA’s assertion that Qwest didn’t need a court order – or approval under FISA – to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers’ information and how that information might be used.

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          p>The choice was, perhaps, difficult and murky.  Doesn’t mean they got it right.  Also, a big part of the telco issue is that if these cases are dismissed, there will be no way to hold BushCo accountable because we’ll never find out what really happened.  It’s as much about that as it is about the telcos themselves.

          • For goodness sake Democrats have the Congress and will soon have the White House.  Conduct an investigation!  Act like a legislature.

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            p>To the extent that this telco immunity thing is an issue, it should be a profound embarassment to liberals.  “I enthusiastically support a party that is really about as useful as you-know-whats on a rooster.”

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            p>Worse: civil lawsuits would never bring anything to light anyway, and have little to no relation to the absurd cop out by the Democratic Congress.

        • I don’t think so.

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          p>They have multi-million dollar legal teams and they couldn’t figure out that you need a warrant for such domestic wiretaps?  Give me a break.

          • As they were “pen register” taps that didn’t record content, but only point of origin, destination, duration, etc.

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            p>I don’t think it is at all clear that people have a privacy interest in this data, and even less clear that the telecommunications company has any duty to customers (other than the desire not to piss customers off, thus losing customers) not to disclose this information.

            • It’s a search of information.
              About me.
              About who I spoke with.
              About when I spoke with them.
              About how long I spoke with them.

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              p>How is that not personal information?  We’re not talking about a gross statistical aggregation where individual records aren’t accessible.  We’re talking about pulling an individual’s phone records.  Completely inappropriate.

              • It’s a search of information.
                About a telephone.
                About what overseas telephones it connected with.
                About when the connection was made.
                About when the connection was terminated.

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                p>Who was on either end of the connection and of what they spoke is not revealed, or even known.

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                p>Just connections, not people, not words.

                • That my personal property isn’t about me.  It’s about the papers in my file cabinet.  Their shape, size, and squiggles.  It’s about the contents of my sock drawer.  How many socks, what color, how it’s organized.

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                  p>Words are just data too.  It’s all data.  That’s what a search is for… data.  So, if that data is information about the time of the call or the words used in the call, it’s still just data.

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                  p>But it’s data about me, and the government doesn’t have a right to it without a warrant if that data requires a search.

                • Your argument is that if the FBI called up BMG and ask for certain, otherwise non-public information that the owners possessed, regarding your logins at BMG, the FBI request would be an illegal request absent a warrant? And that BMG would be liable to you for complying?

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                  p>Assume any implication you wish with my comment, but I’m just trying to understand your argument.

    • What you seem to have missed is that this isn’t just a case of the telecom companies helping the Bush administration do something illegal – it’s a case of the telecom companies themselves doing something illegal.

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      p>FISA made it illegal for telecom companies to comply with illegal requests for information from the government.  FISA came out of the Church Commission, in response to the Nixon warrantless spying scandals, and one thing the Church commission realized is that it’s not enough for it to be illegal for the government to do these things, because the government can work in secret and there’s little chance for accountability (because, for example, the government isn’t likely to bring a criminal case against itself, and you can bring a civil case against it).

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      p>Under FISA, telecom companies had a legal duty to their customers to protect their privacy from illegal government requests for information.  They broke the law pretty egregiously here, and have rightly been taken to court.

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      p>For Congress to step in and excuse them is bad on several fronts:

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      p>1. It’s not Congress’ role to step into something that the courts are supposed to handle, and properly equipped to handle (certainly more so than Congress).  Congress makes laws; courts enforce them, determine guilt & liability, and set punishment.

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      p>2. Congress is setting a precedent that essentially ratifies Nixon’s “if the president does it that means it is not illegal” and takes it a step further: it’s not just if the president does it, it’s also if anyone else does it because the president asked them to.  This precedent says that if you do something clearly illegal but you do it because asked to by the White House, then you should be excused.

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      p>What’s the difference between rule by kings and rule of law, again?  Huh.

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      p>3. These court cases were probably our best chance to find out what the illegal surveillance program really was.  Much of it remains secret, and without court cases and subpoenas it’s possible that much of it will remain secret.  That’s why this was so important to Bush: killing these court cases means some of the crimes of his administration may not be made public for decades, or ever.

  2. Does anyone else question even standard FISA operating procedure?  All evidence at all stages should be presented in open court, with the subject of the investigation reserving the right to challenge every step of the way.  If we are to remain a free society the rights of the accused must always prevail.

    • Does anyone believe there is ever a justification to do anything against the law? I mean I know its absurd, but if a lawyer had information about a catastrophic act about to happen, but revealing it would break his attorney/client obligation, should he break it to save lives?

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      p>I think on a pragmatic level, the answer to many of these straw man questions is yes. I think this country became the greatest nation in the world by doing what had to be done, even when it meant breaking the law. I for one am glad they have done this in the past and hopefully will continue to do it in the future (even if BO takes over and don’t fool yourself into thinking ANYONE who runs this country won’t break the laws to protect he nation). For those who “Can’t handle the truth…”, go walk the line…

      • Not if the government is truly doing its job and collecting evidence that will stand up to both judicial and public scrutiny.  I can even accept if the wider public cannot see everything as long as the accused himself can.  Remember, there is always a chance that someone is INNOCENT.  The Constitution is pretty clear about confronting witnesses (which I would construe as both live human testifiers and physical evidence) and public trials (which I would construe to mean various hearings as well).  As for the telecom issue that started this thread, as far as I’m concerned the government can listen in on whosever calls they like; just get a warrant first, preferably one publicly sworn.  Remember we protect the guilty in order to ultimately protect the innocent.  After all, isn’t this what we are fighting for?  Whenever I hear the authoritarian crowd who want to simply do things their way say, “Those terrorists hate our liberties!”, I’m tempted to respond with “Look who’s talking!”

        • but the famous quote…

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          p>

          In criminal law, Blackstone’s formulation (also known as Blackstone’s ratio or the Blackstone ratio) is the principle: “better that ten guilty persons escape than that one innocent suffer”, expressed by the English jurist William Blackstone in his Commentaries on the Laws of England, published in the 1760s.

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          p>…has always bothered me. Some people question if the number goes from “10” to “100” is it still valid. I think not. I don’t know where it falls off but I do believe at some point a few innocent people will go to jail and that’s too bad. I will gladly live in a society that tries to do what it can to uphold freedom and rights, but not at the cost of many human lives.

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          p>That fact that some people are willing to risk “other human lives” so they can keep such trivial information as who they called, when they called and even what they spoke about is insane and selfish.

          • Heck, make it 1000!  I can certainly understand honest mistakes, but if you happened to be said innocent person I’m sure you’d be singing a different tune.  While we’re quoting, there’s always that Franklin quote about those willing to give up liberty for security deserving neither.

          • If it’s not important to the government, they wouldn’t want it.  If it is important to the government, it’s not trivial.

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            p>As useful as it is to the government to incriminate someone, it’s just as useful to the accused to keep the government from obtaining it.

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            p>

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            p>It’s no more insane and selfish than any other search.  If the police showed up at my door today and said “We have reason to believe that the contents of your home provide the key to preventing an eminent terrorist attack” I’d say “get a warrant” and close the door.  Period.

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            p>Judges are sympathetic to preventing terrorist attacks.  They’re very willing to issue warrants if there is justification.  They’ll do it quickly too, and on a 24/7/365 basis.

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            p>So, you want to search?  Get a warrant.  It’s not selfish for an individual to refuse a warrant-less search, it’s selfish for the government agency to not bother to do their job and get the warrant.

            • I liked that movie and was always struck by the FBI agent who went “by the book” and could never catch a break. It wasn’t until the frustration of people gaming the system in their favor put him over the edge and the “get it done” FBI agent (Gene Hackman) took matters into his own hands to solve the problem. We like to have justice prevail and we could probably all agree that criminals need to be apprehended and incarcerated, but the means is where we differ and I contend that criminals are getting smarter and we will only catch the really dumb ones at this rate. Heaven forbid something truly evil happens because of a “probable cause” concern or attaining a legal warrant slows down the investigation. Then what will we say?

        • 10,000 people are coming over the southern borders every day and you think they can do their job. Who is kidding who?

  3. First, instead of Clinton (Nay) who I supported in the primary, they chose Obama (Yea). Second, of 28 Nays (27 of them Democrats (28th being Bernie Sanders) not one, including Chris Dodd, attempted a filibuster. Strom Thurmond deserved more respect than they do – at least he stood up for what he believed in

    • The count is terrible.

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      p>If there are 28 nay votes, there will be fewer votes against cloture. Senators who voted yea are not going to sustain a filibuster. Some Senators who weakly voted nay might vote for cloture. So that’s under 28 votes and it takes 40 to sustain a filibuster.

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      p>So what’s the point of trying to mount a filibuster that will certainly fail? The Southern Democrats of the post World War II period got good at holding up legislation. They didn’t just do it for the bragging rights.

    • I’ve given up on the Democrats until they show more respect for the country than they do for their Republican masters.  The checks I used to send to political candidates are going to the ACLU.  

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      p>A little off topic, but does anyone else find it odd that Mukasey supports the war criminals the were “just following orders”?  
       

  4. The telcos should pay for bombarding us with hours of “Can you hear me now?” and “For the last time, our minutes don’t expire!” ads.  

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    p>But seriously, three cheers for this lawsuit.  The Bill of Rights is my favorite thing about being an American.

    • The suit includes these plaintiffs:

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      p>- The Nation and its contributing journalists Naomi Klein and Chris Hedges

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      p>- Amnesty International USA, Global Rights, Global Fund for Women, Human Rights Watch, PEN American Center, Service Employees International Union, Washington Office on Latin America, and the International Criminal Defence Attorneys Association

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      p>- Defense attorneys Dan Arshack, David Nevin, Scott McKay and Sylvia Royce

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      p>There’s also a video interview with representatives from two of the plaintiff organizations, and ACLU attorney Jameel Jaffer, here.

  5. I understand suing the government for an alleged violation of the Bill of Rights.  What laws did the telecoms violate?

    • FISA is a law passed in the wake of Nixons’ warrantless spying scandals.  It created a legal duty for telephone companies to not comply with illegal requests for private information from the government.  The Church Commission viewed that as a critical part of preventing these abuses from happening again; it wasn’t enough that it be illegal for the government to do it, it needed to also be illegal for the companies to do it.

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      p>It is illegal for a telecom company to comply with an illegal request for information from the government at the present time.  It was illegal before the “Protect America Act”, became legal when the PAA passed a couple of years ago, and became illegal again when the PAA expired at the beginning of this year.  (The PAA was a horrible, horrible law, and kudos to the House for letting it sunset without renewing it; this new FISA bill, when signed into law, will contain some of the badness that was in the PAA, but not all of it)

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