Think Outside the Box

The ACLU says this about the House’s proposed compromise on FISA.

While we still have concerns about aspects of the new House FISA bill, the American Civil Liberties Union is encouraged by the new draft – particularly the language on state secrets, which would allow the cases to go forward while allowing the telecommunications companies to assert any defenses. We commend House leadership for keeping the courthouse door open.

I think this is what they’re referring to:

SEC. 802. PROCEDURES FOR COVERED CIVIL ACTIONS.
(a) INTERVENTION BY GOVERNMENT.— In any covered civil action, the court shall permit the Government to intervene. Whether or not the Government intervenes in the civil action, the Attorney General may submit any information in any form the Attorney General determines is appropriate and the court shall consider all such submissions.

(b) FACTUAL DETERMINATIONS.—In any covered civil action, the court shall review in accordance with the procedures set forth in section 106(f) any evidence or information with respect to which a privilege based on state secrets is asserted, whether that evidence or information is submitted by any party or the Government. The court may, on motion of the Attorney General, take any additional actions the court deems necessary to protect classified information. In order to ensure full argument of all legal issues, the court shall, to the extent practicable and consistent with national security, request that any party present briefs and arguments on any legal question the court determines is raised by such a submission even if that party does not have full access to such submission. The court shall consider whether the employment of a special master or an expert witness, or both, would facilitate proceedings under this section.

(c) LOCATION OF REVIEW.—The court may conduct the review in a location and facility specified by the Attorney General as necessary to ensure security.

(d) REMOVAL.—A covered civil action that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.

(e) SPECIAL RULE FOR CERTAIN CASES.—For any covered civil action alleging that a person provided assistance to an element of the intelligence community pursuant to a request or directive during the period from September 11, 2001 through January 17, 2007, the Attorney General shall provide to the court any request or directive related to the allegations under the procedures set forth in subsection (b).

(f) APPLICABILITY.—This section shall apply to a civil action pending on or filed after the date of the enactment of this Act.

I’m curious to see what the legal types around these parts think. But it seems that it challenges immunity advocates to put their money where their mouth is. For a long time, immunity advocates have argued that those poor little telecoms couldn’t defend themselves because the government invoked state secrets.

Well, says Congress, simply have the courts review the materials about which the government has invoked state secrets. Voila, problem solved.

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63 replies
  1. GeorgeSimian says:

    Can’t Bush just pardon the telecoms? I mean, I think it’s criminal, but isn’t that what a Presidential pardon is for? I mean, as opposed to freeing jury-convicted criminals.

    • Synoia says:

      Do pardons cover civil suits? They cover criminal actions, but not civil actions, I think.

      If someone encroaches on my land, and I sue, the Government cannot intervene and forgive the person encroaching, because that then is a taking of my land without compensation – Clearly not constitutional.

    • bmaz says:

      Yes you can probably pardon a corporation (they are considered “persons” under the law); but that is only for a criminal offense, the suits at issue here are civil. Pardons have no effect.

      Markinsanfran – Nothing.

  2. Markinsanfran says:

    This actually looks good to me. Glenn Greenwald, on the other hand, seems to believe that this is just part of the Kabuki that will finally end up with amnesty being passed. What does he know that we don’t?

  3. bmaz says:

    Well, before I read the proposed bill, this is what i was concerned about:

    I suppose a lot of people will think that this is a decent compromise. It is not. It is a craptastic pile of dung, Let’s see here, under this “compromise” the Bush Administration is going to appear ex-parte to selected judges in order to present secret/classified evidence that will then be sealed. The citizen plaintiffs and their attorneys never see, hear or know what was the basis given, and have no opportunity to cross-examine and test the veracity of the evidence. Then everything is sealed up. What is the standard on review? Manifest error/abuse of discretion? Want to bet that it is? Only a few judges will be able to be cleared to hear these ex-parte presentations; I assume that since the Administration controls security clearances, they will be able to appoint only Silbermans for the job. This all still denies plaintiffs effective due process. This is a bad idea.

    To which Christy responded:

    I’m getting some clarification about the ex parte aspect that Matt mentions — what I’m told is that it is more along the lines of the CIPA review that any circuit judge could do, not just the FISA court — so, for example, the judges overseeing the EFF suit would review the material to determine relevance and how to proceed just as they would do in a CIPA hearing/procedure, and then issue a ruling detailing their decision where appropriate. Am trying to get a copy of the actual wording to see for myself, but haven’t gotten it yet…

    To which I replied:

    Well i would sure like to see the details; the devil is always there. I am here to tell you that despite all the lofty “every presumption runs to the plaintiff” rhetoric; Federal judges bend over backwards and otherwise contort themselves in unimaginable ways to dismiss civil right cases on 12(b)(6) and other pre-responsive pleading defense dismissal motions for the Federal government. Take a look at Bates’ decision and order on the Plame civil suit for just one example. Knowing that the other side never will see the basis just makes it that much easier. Ask anybody who has done substantial federal civil rights litigation and they will confirm what I am saying.

    So, after then having a chance to read through the actual bill, I will have to say that it looks simpler and better than I thought it would. I could probably live with it. Which means one of two things – either it won’t look like that when it is finally passed and/or Bush will veto it. I still have concerns about the complete secrecy of the ex-parte presentations and what standard of review (a critical concept that no one but trial and appellate lawyers ever thinks about) really is. And that is a critical issue because like qualified immunity assertions, Federal jusges are going to be bending over to grant the dismissal requests. In secret of course. All in all though, it really is about as close as you are going to practically get on this issue. Both the EFF and ACLU have indicated they like it. That counts for a lot, because they, unlike me or anyone else here, have an actual read on where they think Walker will go. If they are agreeing to this bill, they think Walker is going to rule favorably thereunder. As to the rest of the provisions like exclusivity and sunset etc., I skimmed them, but, again, all in all, thought it was shockingly fairly decent under the circumstances.

    • BayStateLibrul says:

      I think you are right. Bushie will definitely veto it, but
      that may be the Dem’s strategy…
      For once, I think the House is taking the lead…

      • readerOfTeaLeaves says:

        Yes, and I think they’re very careful how the speak in public. Which is smart, IMHO.

        Bush wants a fight; the worst thing the Dems could do is give him the fight he wants. The more times they set Bush up to reveal how unreasonable and out of touch he really is, the better they serve the nation.

  4. MadDog says:

    Still reading the pdf EW, but it sures seems like they still got a lot of “to the extent practicable” and “may” weasel-words that they cut and pasted from previous efforts by the cover-up cabal.

  5. Hugh says:

    This actually looks good to me. Glenn Greenwald, on the other hand, seems to believe that this is just part of the Kabuki that will finally end up with amnesty being passed. What does he know that we don’t?

    I think he is looking at the track record of the Congress since Democrats took “control” in January 2007. The PAA is an obvious, egregious, blatant overreach and sanctioning of illegality. That the Democrats still haven’t just come out and said this shows that there continues to be a lot of reason they may never do so.

  6. Mary says:

    OT – great online piece available, The Power of Nightmares, that start back with Qutb and Strauss and US training of Egyptian torturers and goes forward. I’m not through it all, but it’s very very good.

    Re: the proposal, I can’t do a bunch right now, but this part, “the court shall review in accordance with the procedures set forth in section 106(f) any evidence or information with respect to which a privilege based on state secrets is asserted,” may cause trouble in connection with the existing case law and sources and methods protections for the Exec at war. I think they can get there, and maybe this will fly, but I see trouble.

    I also see a problem in only allowing for the state secrets issue to be addressed only in the context of info the AG produces. This doesn’t really let the court get to confidentiality restrictions the telecoms may have and their info and their assertion that they cannot answer bc of espionage penalties for violations. What if they say nothing bc of their assertion that Gov will go after them for making classified info available – but the AG doesn’t intervene fully? Right now, they pretty much have, but still. Plus, the way the privilege is raised right now is often through dept heads – the intel czar crew – instead of AG directly.

    More later maybe.

    • bmaz says:

      Or what if they produce cherry picked and/or false information; without an adversarial party who is going to challenge it? There needs to be a heavy criminal penalty, like life in prison or something, for government officials found to be playing fast and loose with information so presented.

  7. Mary says:

    10 – yep. And think about a situation like the telecoms – lots of the info is THEIRS, not just gov files and info, but they are refusing to turn over any of it bc of the Gov’s privilege. Lots of things occur re: language, practical procedures, and ties with existing case law and its limitations language on what Congress can do vis a vis the Executive. I’d hate to see poor drafting kill the legislation bc no one tried to mesh it with existing language from cases.

    Out of time tonight though.

  8. MadDog says:

    In the section 301 on “Commission On Warrantless Electronic Surveillance Activities”, I would dearly love to see:

    1. Some explicit verbiage that states “assertions of Executive Privilege are prohibited in responding to the Commission’s subpoenas of any and all information required by the Commission” and a penalty of immediate incarceration (in the bowels of the Congressional dungeon with the only sustenance being stale bread and pond water) by order of the Commission Chair until such time as the Commission Chair determines otherwise.

    2. Also, an explicit statement that the Commission’s subpoenas include the power to compel the appearance and testimony of all members of the Executive branch, including both the Vice President and President.

    Am I asking for too much? *g*

  9. MadDog says:

    In Sec. 404 Transition Procedures, Section 1 – “Continued Effect Of Orders, Authorizations, Directives” and Section 2 – “Applicability Of Protect America Act Of 2007 To Continued Orders, Authorizations, Directives”, I would like to see some verbiage that states:

    …shall continue in effect until the expiration of such order, authorization, or directive, unless determined by a court to be illegal/unlawful.

    And, that such a judicial review shall be undertaken immediately on all intelligence activities begun by this Administration after 9/11 wrt to surveillance, data-mining, etc.

    I won’t hold my breath waiting for such inclusion…sigh! *g*

  10. MadDog says:

    I think that pond water should be supplied by KBR/Halliburton.

    In my dreams I can imagine Deadeye in his Congressional dungeon cell sipping from a bottle of “Fallujah ‘04″ pond water (branded by Halliburton) and laughing to himself about all the profits he’s making by drinking his own products:

    “Garçon, more, more I tell you! Another round on me. And bartender, keep ‘em coming, ’cause I’m gonna be rich, rich, I tell you! And while your up, deliver a case with my compliments to Junya in the cell down the hall. We’ll have a party, a party I tell you!”

    • bmaz says:

      I will leave that up to the guy guarding their cells, that would be Detention Officer Mahar Arar. Although, I think job postings for Officer Arar’s assistants should be made among the population at Guantanamo.

      • MadDog says:

        I will leave that up to the guy guarding their cells, that would be Detention Officer Mahar Arar. Although, I think job postings for Officer Arar’s assistants should be made among the population at Guantanamo.

        That would work, but Mr Obsequiousness, otherwise known as Trusty Fredo Gonzales, in with a Life-No Parole contempt sentence, has already shlepped his way into that position.

        However, the “Body-Cavity Search” posting is…wide open. Better be quick ’cause another Trusty by the name of Turdblossom is looking to fill it.

        • Ishmael says:

          Sometimes, in my more wishful moments, I think of Bush some years from now being snatched away from Crawford by some small nation he destroyed, or whose population he brutalized, just like Eichmann. And that the world’s attention would be transfixed by the trial for his crimes against humanity, and Bush would look just as pathetic and weak as Eichman did – banality of evil indeed.

  11. Ishmael says:

    I like the way that the Government’s role is expressly stated to be one of an “intervener”, as opposed to a “party”. The distinction is important in terms of standing, an intervener has fewer rights in litigation than a party, and it’s role, at least if the language is followed, as an intervener any participation by the Government would be as prescribed by the judge – and interveners don’t always have appeal rights, as do parties to an action. So, good drafting by the House, in any event.

    • bmaz says:

      Keep in mind that the US is a named party in many of the cases, although not all. I don’t believe they are in Hepting.

      • Ishmael says:

        Thanks for the clarification! BTW, I am watching Charlie Rose right now, and Brian Ross is on about Spitzer, and now they are talking about money laundering charges, not currency transfer violations. I made this point with Masaccio yesterday, that money laundering seemed more likely to me, that the charges, if any, could be exceedingly vague – the case seems to be morphing by the hour.

        • bmaz says:

          Check out this article by Newsday. Where is his intent or scienter for money laundering? Maybe I am batty, but i still haven’t seen any solid criminal violation by Spitzer except for solicitation under state law. Maybe the Mann Act, but what prosecutor would want to be the jackass appearing in court on that prosecution? I would expect to be ridiculed by everybody in the courthouse.

          • Ishmael says:

            Alan Dershowitz just agreed with you – money laundering statutes are not structured for someone to conceal how he spends his own money – he called it a way for the federal government to overreach into people’s lives using statutes designed to catch terrorists.

            • Minnesotachuck says:

              I am shocked – shocked! – that anyone would suggest that our scrupulously fair federal government, and especially its Justice Department would

              overreach into people’s lives using statutes designed to catch terrorists!

          • PetePierce says:

            This is fairly banal=obvious, but I don’t believe prosecution was even a peripheral consideration by DOJ–do you? (I would love to see a list of who weighed in on orchestrating the indictment and timing of the Emperor employees)and the real way this came to the attention of DOJ. Garcia’s emails would be fun and informative.

            I think they simply wanted to bring a prominent Dem down–they were sick of the legitimate prosecutions that has so many Republicans checking in to BOP and they had control of the tools to do it in the spirit of the swagger in Bush’s Gridiron dinner song.

            BTW I left a note for you on how to easily make the § or 10² or 10³ here.

              • PetePierce says:

                Sorry about that–I didn’t realize “charmap” must be a Windows feature, but for the fun of it (I don’t have any Macs here) I’ll poke around and see if there is an analogy to Character Map on a Mac. I’d be really surprised that they don’t have its functionality and lots more.

              • PetePierce says:

                I wish I had a Mac tonight to play with, but see if this shows up.

                I think the majority of people around here have Macs, so someone will probably pipe up and point out where this is on a Mac.

                Mac OS X Character Map

                I don’t know where the symbols (§ of couse would be one) are located but Mac has a similar thing called “Character Pallet” I believe:

                Character Palette in the Mac

                Activate Character Palette on the Mac

                Tomorrow’s Good Morning America has a tutorial explaining how escort services work, before the kids are gotten off to school. Is this a great country or what?

  12. earlofhuntingdon says:

    Speaking of thinking outside the box, George Bush just appointed Karen Hughes to the board of governors of the United States Military at West Point. Which takes message discipline to a whole new level.

    George Bush in, Corrupting Government for Seven Years and Counting. Availabe on dvd next January.

    (h/t ThinkProgress)

  13. earlofhuntingdon says:

    Speaking of soap boxes, I’d say Brad Jacobson has Bill Keller’s number:

    Maybe Keller was a great reporter. Maybe his editorial work was exceptional prior to taking on his current role…. But it’s clear Keller has been a lousy executive editor for The Times. During a period when the most secretive and criminal administration in our nation’s history has held office, The Times, under Keller’s stewardship, has too often shown an apprehension to report the cold hard facts in an intellectually honest and timely fashion.

    His leadership at our paper of record has not only damaged journalism but our country as well….It’s time for Bill Keller to step down….

    http://www.atlargely.com/2008/…..ously.html

  14. bmaz says:

    From the Newsday article:

    The bank, as is required by law, filed an SAR, or Suspicious Activity Report, with the Internal Revenue Service, reporting the transfer of the money that exceeded $10,000, but had been broken down into smaller amounts, the sources said.

    “The bank did the right thing,” said one source familiar with the situation. The name of the bank could not immediately be determined.

    But the source added that “we then got lucky” in singling out Spitzer and the ring.

    Millions of SARs are generated each week and flow into the Internal Revenue Service nationwide, but an analyst at the regional IRS office in Hauppauge noted Spitzer’s particular SAR and singled it out for attention to criminal investigators, the sources said.

    The assumption, the sources said, was that Spitzer was being victimized either by a blackmailer or an impostor. The agents also speculated that perhaps the governor was involved in some sort of political corruption, the sources said.

    The agents, located at an IRS office at 1180 Veterans Memorial Hwy. in Hauppauge, joined with prosecutors in the Southern District in New York to determine the circumstances surrounding the transfer of the money and the nature of the company it was going to. The Southern District was chosen because the bank transaction had occurred in Manhattan.

    Pardon me, but exactly what evidence that there was a crime to be investigated here? What evidence that Spitzer had committed any crime? What probable cause was there for any warrants/ wiretapping and other invasive investigation? I don’t think this is the governments final answer as to how this came down, cause this doesn’t wash.

    • PetePierce says:

      You betcha. Someone last night, Mary I’m pretty sure, made a comment about the DOJ needing to get their stories straight. I agree. That explanation of IRS getting an SAR or some other type of a flag referred by a bank just sounds to robotic. Call me paraonid, but my gut tells me there is overwhelming evidence that this was a very orchestrated attack on Spitzer. If you substituted someone else’s name who had been a customer of that service who was Joe Blow nobody, I doubt he would have been mentioned, possibly even in the indictment of the Emperor people. Yeah they had 9 people in the indictment, but as EW said, Spitzer became Target #1.

      I know Christy or Jane referred to Scott Horton articles likening this to the Siegelman prosecution. I haven’t read them, but it seems similar enough as to the methodology that went after a governor.

    • masaccio says:

      The bank filed a SAR because of several transactions that exceeded 10K? Why? What is suspicious about that? How could a bank think that these transactions were suspicious?

      You have to file a CTR if several cash transactions which happen close together exceed 10K. Not if there are several checks at about the same time that exceed 10K. Not if there are several wires that exceed 10K. There has to be some other thing that would make the bank think that there was some crime. There are published “red flags” that require a filing, but even then, there is something of a judgment call, assuming something triggered a bank’s program to see.

      The article suggests that it was Spitzer’s transactions that started things, and other articles hint at the same thing. I don’t believe it. I think the feds were sitting on QAT and got lucky finding a wire into QAT’s account from Spitzer.

      On topic (sorry), note that the period defining covered cases begins on September 11, 2001, and ends on January 17, 2007. If the government was illegally spying before or after that time frame, it isn’t going to be subject to the protective provisions of this law.

      • bmaz says:

        Yes, and what basis would the IRS or any other govt. entity have to go further even if that was the genesis (which, for the record, I too don’t believe)? If I am an IRS or other agent, I would look at the SARs/CTRs or whatever and say “well, it looks a little goofy, but I can’t see any crime here and not only is this pocket change for this rich dude, but he is the freaking Governor of New York, get this crap outta here. If this was how it proceeded, who the hell issued warrants, subpoenas or whatever based on this piddling of nothing??? Unless, of course they just whipped out some desk warrants or NSLs or something that would be totally improper….

  15. Minnesotachuck says:

    OT: Wisconsin fails to ratify the Great Lakes Compact

    It won’t get much national press on this side of the border but maybe will to the north. (Ishmael?) That is, not until fresh water becomes a global resource crunch like what oil is now, as many prognosticators expect. Unless this compact is ratified, the door could be opened to siphoning off massive amounts of Great Lakes water to god knows where with god knows what negative consequences. As per this back story in the Minnesota Monitor here, 80% of Wisconsinites say it should be ratified as is, but a handful of GOP state legislators who have apparently been bought by real estate interests near Milwaukee say otherwise.

    • prostratedragon says:

      bought by real estate interests near Milwaukee say otherwise.

      Now that would be selling yourself fucking cheap. For the last great freshwater resource in the world, that does not even rise to the level of a decent lentil soup.
      (Native Chicagoan; apologies to my Milwaukee relatives, but Jeez!)

  16. bmaz says:

    Tomorrow’s Good Morning America has a tutorial explaining how escort services work

    The people who want to know, already do. Thanks, I’ll check out the tips. § Hey did that work? I think it did. Cool! thanks!

  17. Loo Hoo. says:

    Isn’t Schumer a Senator from New York? Isn’t he on the banking committee? Wouldn’t he have some expertise about how this would play out? Might he possibly be interested since this is a Democratic Governor, and be able to shine some light on this?

    • PetePierce says:

      Yes, yes, yes and Schumer and Clinton are huddled trying to figure out what their response will be when its safe for them to have a significant one if ever. Hillary said she was concerned for the wife and children, and in that area, and in that area only I’ll grant she has significant experience.

      Schumer is on the Senate Finance Committee and the Senate Committee on Banking, Housing, and Urban Affairs.

      What would I have liked it to be? A very focused precise statement that it reeks of bullshit and a targeted prosecution and the information was tailored to bring Spitzer down.

  18. bobschacht says:

    NPR added a significant new piece to the puzzle (Tuesday). The report identified Spitzer as under enhanced scrutiny because he was a “PEP”(?), a “Publicly Enhanced Person” or some such. In other words, Data Mining specifically targets political figures! Sounds like Karl Rove’s dream! This is why it is no accident that the Spitzer was a target.
    I’ve looked at the NPR archives, however, and I can’t find the report. Anyone recognize what I’m talking about here? I think the report claimed that the practice began under Clinton.

    So this means that Nancy Pelosi, Harry Reid, and every other Democratic leader is under the same microscope. Of course, we “knew” that this was happening, but this gives the practice a name and a known practice.

    Bob in HI

    • BayStateLibrul says:

      Good pick-up… It’s entitled Tax Inquiry Uncovered Spitzer’s Prostitution
      Link… software program flagged him… Bank to IRS “Bundled payments”…. patterns of behavior…. can be less than $10K…

      All Things Considered show

      http://www.npr.org/templates/p…..m=88115505

  19. bobschacht says:

    I got it– the term is “Politically Exposed Person”

    The Invasion of Spitzer’s (Financial) Privacy

    I just heard Adam Davidson on NPR’s “All Things Considered” try to explain the reason that Eliot Spitzer was targeted. He said that after 9/11 banks/law-enforcement came up with software that scrutinized cash withdrawals to look for suspicious patterns. The old Mafia threshhold of $10,000 went out the window. Now a series of 1000 withdrawals of $5, to make $5,000, was a red flag.

    Davidson said that another layer of scrutiny was of PEP–”politically exposed persons”–which includes even the relatives of elected officials. Their bank accounts got an even finer-toothed comb. So maybe, Davidson speculated, Spitzer moved around a few sums of $2,000… Davidson presented all this as cutting edge, routine and gee-whiz.

    BayStateLibrul caught the right name of the report but the link should be
    http://www.npr.org/templates/s…..d=88116176

    Here’s more on PEP in a report from last year:

    Government must clean up money laundering rules

    Posted 27/03/2007 by Fiona Woolf

    It’s difficult for me not to shudder a little on hearing a mention of the Government’s dreaded draft money laundering regulations. They could not only impose significant extra costs on solicitors for compliance but also reduce the competitiveness of UK firms by gold-plating the implementation of the EU directive. They could put even conscientious solicitors at risk of conviction and imprisonment.

    One of the many issues we are trying to get the Government to look at is around the requirement for solicitors to conduct enhanced customer due diligence (CDD) if your customer is a politically exposed person (PEP).

    For the uninitiated in such matters, this enhanced CDD involves:

    * having appropriate risk-based procedures to determine whether the customer is a PEP and the approval of senior management for establishing a business relationship with such a person;
    * taking adequate measures to establish the source of wealth and source of funds which are involved in the business relationship or transaction; and
    * conducting enhanced monitoring of the business relationship.

    No small undertaking, I’m sure you’ll agree.

    But a PEP isn’t just anyone though. Interestingly, a PEP cannot be a person who is resident in the UK so, while the Government is keen to fight corruption abroad, it has no interest in having solicitors looking into what its own officials may be up to.

    A PEP may have been entrusted with a prominent function in another nation state, the EU or an international body.

    For the record, a prominent function includes:

    * head of state, head of government, ministers and deputy or assistant ministers;
    * members of parliament;
    * members of supreme courts, of constitutional courts or other high-level judicial bodies;
    * members of courts of auditors or the boards of central banks;
    * ambassadors, charges d’affaires and high ranking-officers in the armed forces; and
    * members of administrative management or supervisory bodies of state-owned enterprises.

    A PEP will also be the immediate family (spouse, partner, child and parent) and close business associates of the person who holds the prominent function. Quite a list!

    I think it’s fair to say that as solicitors we recognise there is a greater risk of corruption – and therefore money laundering – with respect to PEPs. And we also recognise that they may be some of the first people in the UK to be aware of the intention of a PEP to move corruptly obtained funds into ‘safe havens’ because they are given instructions to set up the vehicles or transactions to facilitate this.

    So we’ve told the Government that while solicitors would like to assist in stopping such activities from happening, in reality they have limited resources and ability to actually know who is a PEP, particularly given the extended definition in the regulations.

    Some 84.7% of law firms consist of fewer than four partners and only 1.6% of firms have over 26 partners. Many of those firms will rarely, if ever, deal with potential PEPs, as such the cost of mitigating this slight risk must be proportionate.

    In deciding whether a person is a known close associate, a solicitor will have to have regard to any information which is in his possession or is publicly known. But just because information is publicly known, it does not mean it is universally known. For example – it was widely publicised and publicly known that Peter Foster had convictions for fraud in a number of countries including the UK, yet both the Prime Minister and his wife claimed to be completely taken by surprise by this information after entering into business deals with him.

    And then there’s the issue of the accuracy of commercial databases – don’t get me started on the difficulties there! In their consultation on the new regulations, the Government has stated that it will not be providing lists or databases for solicitors or other person covered by the regulations to help them ascertain whether their client is a PEP (although they are better placed that most to get hold of this information).

    By refusing to assist in this way the Government is requesting that, as solicitors, we are to form a line of defence against PEP money laundering – with one hand tied behind our backs.

    So what is our take on all this? The Law Society is advocating for production of lists of everyone who qualifies as a PEP by the UK/EU and for these to be provided free of charge to persons covered by the regulations. In reality, this is the only way to ensure this is effective, if they are really serious about the risks posed by corrupt government officials.

    Bob in HI

    • cbl2 says:

      thank you bob at 49 !

      have been wading through pdf’s and other extremely dry materials (and I blame you for this empty !*g*) on changes to banking/finance/ anti money laundering statutes made in the atmosphere of the Patriot Act – much of it hastily and sloppily cobbled crap

      jaysus, GWOT has proven to be the Swiss Army Knife of political cudgels

      as to the charges of a politically motivated investigation a la Siegelman, – it appears Gov Spitzer has made a deal and we may never know

    • PetePierce says:

      These articles may be helfpul in detailing how the DOJ and Tresasury Departments allege Spitzer was targeted. I still believe the SWIFT data base is being illegally adopted by the CIA, and illegally used by DOJ, that it is illegal as applied to US citizens operated in Belgium, that there are no safeguards for US citizens now vis a vis SWIFT as Mary pointed out in the thread before this. If SWIFT was used to get the data initially on Spitzer, then it was illegally done. However the hastily contrived cover story for US Attorney Garcia goes along the lines of these links. What they did worked because the airhead media is following Spitzer’s limo to his resignation the way they followed OJ, Martha Stewart, and Britney.

      The government would defend any attempt at discovering how they actually got the information in the first place with a State Secrets argument if Spitzer’s attorney Michele Hirshman who used to be his first Deputy Attorney General in NY and was chief of the Public Corruption Unity in the S.D.N.Y. for eleven years. They have a front story that is extremely shaky along the lines of a standard IT interception as outlined below:

      Eliot Spitzer’s Software Nightmare

      How an information system helped nail Eliot Spitzer and a prostitution ring


      Financial Crimes Enforcement Network

      SAR Activity Review By the Numbers

  20. BayStateLibrul says:

    Legal question: Can a judge so order?

    “Judge Walton also ordered that Ms. Locy pay the fines with no help from her employer, friends, family or anonymous supporters.”

    Too bad Reggie couldn’t order Libby to pay his own legal fees…

    http://www.nytimes.com/2008/03…..tml?ref=us

  21. JohnJ says:

    On the original topic, two questions come to mind.

    – Where does that leave the illegal action BEFORE 9/11? We know that they were channeling Tricky Dick and started long before the rest of us knew about the attacks. Since everyone seems to forget, they were busy tapping into the net in 2000 to protect us from Cyber-terrorists that were going to bring down our society by controlling everything from the web. (There were scenarios floated that Nuke plant could be melted down and missiles launched, if anyone actually put those controls on the web they should be tried and executed for criminal stupidity).

    – For those of us unwashed masses dealing with the law, the only thing that hiring an Attorney consistently does is DELAY THE CASE. If the Lawyers do what they are best at, won’t that push these cases into the time when we have a real AG?

    A disclaimer: I live in Florida. My cynicism is based on the fact that Law enforcement and the courts never caught up with the rest of the world in reforms over the last century. We therefor haven’t gone backward; we never went forward. We have a saying:

    “Florida; arrive on vacation, leave on probation, return on violation”.

    Having a Bush with part of a functioning brain running amuck for 8 years here didn’t help very much either.

  22. IntelVet says:

    On a Mac, 10.5, Leopard.

    Activate Finder or any Cocoa written app like Safari, Mail, etc.(make name next to black apple on upper left side of screen read as, say, Finder – or click once the two-faced icon in Dock.)

    With mouse, select Edit -> Special Characters….

    Will give you a floating Character palette. If not already there, open Symbols and select “Numbers and Number Symbols.

  23. bobschacht says:

    What is the legal basis for enhanced surveillance of PEPs–”politically exposed persons”? Is this in legislation, or is it an executive regulations, or what? Anyway, as I originally suspected, it seems made to order for Karl Rove.

    Bob in HI

  24. klynn says:

    bobs @ 49

    Now a series of 1000 withdrawals of $5, to make $5,000, was a red flag.

    Davidson said that another layer of scrutiny was of PEP–”politically exposed persons”–which includes even the relatives of elected officials. Their bank accounts got an even finer-toothed comb.

    There is also the PIP software that scrutinizes Politically Informed Persons who comment at EW, FDL, TPM…

    Those $$$ withdrawals of $20 on a weekly pattern of 52 weeks annually gets you put into the system and red-flagged…

    Thanks for the info Bob.

    on topic: bmaz I am with you on the need for a harsh penalty to secure true information…

    The “factual determinations” section makes me uneasy simply by your point of cherry picking.

    …to the extent practicable and consistent with national security, request that any party present briefs and arguments on any legal question the court determines is raised by such a submission even if that party does not have full access to such submission.

    How is “practicle and consistent with national security” determind in regards to FISA?

    • klynn says:

      bmaz

      How is “practicle and consistent with national security” determind in regards to FISA?

      Couldn’t one “drive a truck” through that language or rather “not” drive a truck through?

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