Trading our Constitution Away Based on the Word of Alberto Gonzales
Here’s what Jim Comey had to say about the illegality of the warrantless wiretap program:
SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.
COMEY: I’m not saying — again, that’s why I kept avoiding using that term. I had not reached a conclusion that it was.
The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.
SPECTER: OK.
Well, now I understand why you didn’t say it was illegal. What I don’t understand is why you now won’t say it was legal.
COMEY: Well, I suppose there’s an argument — as I said, I’m not a presidential scholar — that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal.
I disagreed with that conclusion. Our legal analysis was that we couldn’t find an adequate legal basis for aspects of this matter. And for that reason, I couldn’t certify it to its legality.
Comey’s a pretty conservative lawyer. Even still, he obviously struggled seriously to figure out whether, if the President said something that had no basis in law was legal, it was legal, or not.
You might think that’s the kind of challenging legal assessment Attorney General Mukasey is doing, preparing (as he surely is) to deliver the immunity the FISA capitulation will give the telecoms within the next week.
But you’d be wrong. As a reminder, here’s what the immunity language in the FISA capitulation says.
[A] civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that
[snip]
(4) the assistance alleged to have been provided by the electronic communication service provider was —
(A) in connection with intelligence activity involving communications that was (i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007 and (ii) designed to prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States" and
(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.
Look at the language carefully. It doesn’t say, "Michael Mukasey, a conservative and complicit–but still a once-respectable–lawyer, must review the program and certify that the program was legal." Rather, it says that, for the telecoms to receive their immunity, the Attorney General (Mukasey) only has to certify that at the time the Administration requested the telecoms’ assistance, they were told, in writing, that the program was "(i) authorized by the President, and (ii) determined to be lawful." There’s no "determining to be lawful" going on now. There’s simply the assertion, on a piece of paper, that someone–they don’t even have to say a lawyer did the determining!!!–someone determined the program to be lawful. It could have been Jenna Bush, on a bender, "determining the program to be legal." So long as she could manage to put pen to paper to certify as such–that’s the only standard the FISA capitulation requires!! Me, you, my dog McCaffrey–anyone of us could determine the program to be legal; had we done so, and told the telecoms as much, they go scot free.
And, in fact, it’s almost that bad. We know, after all, that on one of the certifications, someone almost as incompetent as Jenna on a bender (though not quite as competent as my dog McCaffrey) "determined the program to be lawful."
The Committee can say, however, that beginning soon after September 11, 2001, the Executive branch provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President.
The Committee has reviewed all of the relevant correspondence. The letters were provided to electronic communication service providers at regular intervals. All of the letters stated that the activities had been authorized by the President. All of the letters also stated that the activities had been determined to be lawful by the Attorney General, except for one letter that covered a period of less than sixty days. That letter, which like all the others stated that the activities had been authorized by the President, stated that the activities had been determined to be lawful by the Counsel to the President. [my emphasis]
For a period of time, only the President’s own lawyer, Alberto Gonzales "determined the program to be lawful." The President said, "If the President says it’s legal, it’s legal." And then, the hack lawyer who had protected Bush from legal consequences going back to Texas days said "If the President says it’s legal, it’s legal." And voila! Based on the President and then his Fredo declaring the illegal wiretap program to be legal–after a bunch of competent lawyers had already said it was not legal–the telecoms get their immunity.
Now, just as a reminder, here’s what a bunch of Republicans think of Alberto Gonzales.
Chuck Hagel: Gonzales can no longer meet the standard where his "honesty and capability are beyond question" and "has lost the moral authority to lead”
John McCain: "I am very disappointed in his performance"
Tom Coburn: There "has to be consequences" for Gonzales’ leadership failure
Kit Bond: Having Alberto Gonzales at DOJ "is doing more harm than good"
Tom Tancredo: "Misplaced priorities, political miscalculation, and a failure to enforce the laws which he has sworn to uphold"
No moral authority … questionable honesty and capability … doing more harm than good … failure to enforce the laws which he was sworn to uphold. Based on this man’s word, Congress is preparing to violate the separation of powers and sweep a whole bunch of law-breaking under the rug.
The Republicans and Democrats in Congress are preparing to trade our legal rights away based on the word of someone even the most conservative politicians recognize failed to enforce the laws he swore to uphold.
That’s how cheap our laws have become. When the word of a hack like Alberto Gonzales is enough for Congress to trade our legal rights away, our laws have become very cheap indeed.
Wow Marcy, you have synthesized this right down to the rotten pit. No, you have identified the bacterial beginnings.
I guess I would call you an etiologist.
Luv the Tancredo cite, who only thinks Gonzo sux due to being of arguably illegal origins.
Hagel- can I ride the Obama train?
McCain- wish I could take this back, Herr Dobson.
Bond- we need subtlety in lawbreaking.
thanks.
once again.
”If the President says it’s legal, it’s legal.” reminds me of some far off time in alice in wonderland or something similar… the scary thing is, this is in real time… the us president does hollywood one better.. is anyone paying attention??
OT I’d like to know what Senators are in chamber listening to Dodd?
Marcy they should read your blog on the Senate floor!!
Marcy, herein, you have distilled a fine and true serum. Is Obama gonna show up? The MSM has done a great job hiding this matter from a largely unconcerned public. Obama may walk away in silence and pay only a small political price. No doubt, he is the least worst. Will he take a chance and piss off enlightened voters? He is still least worst.
And then there’s Claire McCaskill.
She’s my senator, and I got this from her today . . .
*sigh*
She’s a former prosecutor, and she’s trying to sell the “We Meant Well” defense? Good grief.
Oh, and I took her up on the offer to contact her again . . .
Outstanding! I was kind of hoping you would!
maybe you should ask if she listened to Dodd and did she take any of it in?
I wrote her back before Dodd got up to speak.
I did suggest she check out one of the fine posts by bmaz here at EW’s, though.
Let me translate
tooo funny!
I think that’s close but I am seeing in the last part this as a more complete translation:
As Claire McCaskill is a former prosecutor, I wonder just where in all those law books, writs and opinions she found the precedent for the Peeping Comms to nullify their behavior simply because: “The Administration fooled us!”
Sen. McCaskill said, “I just don’t think we should punish these companies for their good-faith reliance on government assurances that they were assisting in a legal effort to combat terrorism.”
Well, isn’t that special.
Is she that stupid? Or does she just not care about our Constitution?
Ordinarily one would think that a statutory requirement like, “determined to be lawful” could be done by “any lawyer”, “based on a good faith interpretation of the applicable law”. Terms this administration defines with considerable elasticity, since it includes Alberto Gonzales in their list of such lawyers.
However, I seem to recall that this administration has previously taken the position that the President can make his own determinations of what is “lawful”, and that his instructions to, eg, the DOJ, to that effect are conclusive.
Kinda like the President pardoning his own legal transgressions, isn’t it?
Dodd just stated he was of the 2nd branch not the third branch and as a congressman he job was to ensure that congress did not tramople the 3rd branch..(.my words)
bad spelling
Marcy, if I understand this right Comey could not find for or against but mukasey is willing to destroy his reputation as a lawyer and AG to say it was and is legal(unitary exec)
No.
Mukasey’s not making a legal determination at all. All he’s doing is looking at a piece of paper we all know to exist (and we all know to have been signed after a bunch of lawyers found the program ILLEGAL) to say whether it actually says, 1) The president authorized it 2) It has been determined to be legal (by Jenna on her bender and other notables).
I got that wrong when I first read it. Mukasey’s not making an interpretation of the law. He’s reading a document, just like a beginning secretary does.
Thanks a little slow tonight…left messages at Dole and Burr’s office, lot of good that will do just hoping they may grow a heart..snicker.
No, Comey found substantial evidence against warrantless wiretapping, and he found nothing supporting the opposing position. He left the loophole that a constitutional scholar might find evidence that he hadn’t.
I just sent a message to Mary Landrieu. I used to know her socially (Hi, how are you?) at legislative functions in Baton Rouge. Anyway, I used the fact that I still have a lot of family in Louisiana to try and gain her attention — and state that there is absolutely no reason for her to support the immunity provisions of this bill.
I am just hoping that she is pissed off enough at what BushCo did to New Orleans (her home turf) that she might decide to get even…
What gets me is that a lot of these people that support the Republican parties position are Veterans of WWII, and all or most of us are 1st generation WWII children ( well except some of you). What part of WWII do they not understand that as Dodd said the N trials were about the rule of LAW.
Raw Story has an interesting post up from The Politico’s “The Crypt.” It is not just that AGAG’s word is helping to trade away our Constitution — it is also about Democrats who flipped their votes last week — and received, on average, $8359 more in contributions from the telecoms.
“House Democrats who flipped their votes to support retroactive immunity for telecom companies in last week’s FISA bill took thousands of dollars more from phone companies than Democrats who consistently voted against legislation with an immunity provision, according to an analysis by MAPLight.org.”
We just don’t have enough money, apparently, to merit upholding our laws…
can you say bribe?
If they’d told us how cheaply they could be bought, we could have bought all of them. Or at least enough to have made a difference last year.
g*dd*mned m*th*rf*king c*cks*ckers.
I could sell you some vowels, at least. Cheap.
Need a laugh?
Bluto: “It’s not over till we say it’s over” *g*
http://www.youtube.com/watch?v=Lf74T5t-f3k
This is the only video I could find with the entire scene, and whoever uploaded it, dubbed their voice in in a few places, which is kind of annoying, but still it’s the entire scene
You know, there really hasn’t been any true determination of legality here. Okay, I mean even beyond the obvious. The Administration has proffered that the legality was established in a series of letters by the Attorney General, with the exception of one period of less than 60 days in which the legality was determined by by a letter from the White House Counsel. But the reliance of the AG (and WHC for the excepted period) on Article II power inherently means that he relied on the word and power of the President. So it is a circle jerk of authorization. President says it’s okay, and the AG says it’s okay because the President says it’s okay.
This is really the same thing Marcy is saying, just viewed from a different angle. Either way, this is so patently legally spurious and specious that it is breathtaking. And, as EW noted, there is evidence in the Congressional record that the senior leadership of the DOJ could find no valid legal basis other than the President’s say so. And as long as the current AG will advise the court that this is what happened, immunity is given. Again this is what EW said. It is still simply stunning. Even after the three weeks or whatever we having been discussing this standard.
One more point. I fibbed in the post where I said Jenna’s bender-induced authorization had to be written. THe bill doesn’t even say THAT.
That’s good, bc McCaffrey the MilleniaLab’s writing isn’t too legible.
Heck, it could’ve been Barney from his email account for all we know.
Barney doesn’t like wiretapping. The press keeps trying to figure out what he’s saying to the gals in the kitchen. Blowing his cover.
So it wasn’t Barney.
Yes, well, in spite of that heinous error, I was able to navigate the issue. I will note, however, that you caused me to put in far more legal effort than was expended by the Administration in the process described above. Five seconds of my life I shall never get back.
I find it really, really, really interesting that “immunity” begins on September 11, 2001. The President was having his sorry butt flown all over the country on that day…wasn’t he??? There was no decision made that day that wasn’t “in the works” before that day.
I call BS.
All decisions were made in the bunker that day by “you know who”, and needless to say, but in the spirit of truthiness, all decisions from that day forward too were made by “you know who” either from within the bunker or a certain man-sized safe.
Junya just imagines that he’s put crayon to paper.
Oh, Junya put crayons to paper all right. What he’s imagining (and doesn’t seem to realize that it’s all imagination) is that he wrote something important and worth reading. I bet Darth keeps telling him that he’s doing a Really Good Job, George.
I’m sure Cheney has everything on Bush. And Bush lost the goods (in writing-cuz their ain’t none) on Cheney.
Bush holds the “important people” edge, Cheney holds the hard-ass people.
Marcy,
I wonder how many Democrats are willing to vote for this thing because they think that ultimately the Supreme Court will throw out a lot of it? i.e. its like a “free” vote. Is there any prospect that much of this stuff won’t pass muster in the courts? Or is retro-active immunity a genie that you can never put back in the bottle?
I think once its out it would set precedent?
This would be a rather narrow precedent, don’t you think? First, we had been attacked on 9/11 AND the President broke the law by not even seeking a FISA warrant. How often does that happen?
Second, it’s political. How many senators who voted for the AUMF can now say that what the telecoms did in that time period was wrong? Weren’t we all fighting “the enemy”?
I can’t see how we can criticize the telecoms for that time period unless it can be shown they did other things with that information than hand it over to the government for their fight against “the enemy”.
The big question, as I see it, is how this affects the operation of FISA for the future and so long as this kind of behavior is only allowed during war-time I can’t see a problem.
Even under normal circumstances FISA allows the government some time to come up with the warrant, so a telecom would have to comply to an order from the Executive branch anyway. In such normal circumstances the only question would be whether telecoms break the law by continuing to comply even after the FISA warrant doesn’t show up. It seems pretty clear they would be liable at that point.
I also like that the House bill calls for an investigation of the Bush eavesdropping program and leaves open the time before 9/11 when we know Bush & telecoms were eavesdropping illegally.
Probably the biggest unanswered question in my mind is whether this House bill (or the unseen Senate version) still gets info on the Bush eavesdropping activities which would’ve likely come out during civil cases. Will the reports from IGs cover that? Can cases still be brought on the pre-9/11 spying?
I don’t see it as a disaster at all. It’s just that politicis IS indeed somewhat like the making of sausages.
I wonder if the citizens whose 4th Amendment privileges, privacy rights, and personal rights to what are effectively compulsory damages under the law, all of which are being taken away from them, feel the same way?
I don’t know.
I think the chances this will be appealed and thrown out are much greater now that a District Court, rather than FISC, will do the fig leaf review. ACLU and EFF have enough competent lawyers to make a decent bid for a higher review.
But I don’t think it’s anywhere near as sure a thing as MCA was–that was not only clearly unconstitutional, but also had a clear track for judicial review. Because of the many layers of state secrets and immunity involved here, you’re really gambling if you think 1) it’ll get to Kennedy and 2) he’ll vote in our favor.
– But I don’t think it’s anywhere near as sure a thing as MCA was–that was not only clearly unconstitutional, but also had a clear track for judicial review. –
Or said another way, when you’re locked up in jail, and your contention is that the jailer has no basis for detention, there isn’t any question about “standing.” You are in the jail. The EVIDENCE that you are in jail, is that you are in jail.
Contrasted with secret surveillance. Where, if you don’t know you’ve been snooped six ways to Sunday, has your reasonable expectation of privacy been invaded? Never mind that to get in court, you have to have EVIDENCE. Where’s the evidence that you were snooped? And after that, you have to prove there was inadequate basis — the bad guys are going to argue they were wrongly surveiled, too.
BINGO
Even al-Haramain, which had proof, had it taken away.
Thanks, as always, for your contributions, cboldt.
Not any more apparently.
I think there is a reasonable chance there are 5 votes to hold the retroactive legalization of warrantless wiretapping unconstitutional. The Boumedienne opinion seems to turn on a separation of powers argument, that you can’t remove constitutional rights by stripping courts of jurisdiction. It looks like at least those five Justices are not impressed by the Scalia jeremiad, and anyway, many won’t die if telecoms are held liable, except for the part about losing money..
But you have to get there first. Granted, we’d be going through the 9th. But there are any number of reasons to throw the case out. ACLU’s lawyers are smart, but no one has had to try to do this before.
Well, I think you just keep appealing on Constitutional grounds. I don’t remember any efforts to strip courts of jurisdiction to hear constitutional issues by statute, but I certainly am no expert in this.
I am not certain on this at all, but there may also be a profound difference in the standard of analysis applied to the FISA consideration as opposed to the Boumediene consideration by the SCOTUS. This is part and parcel of what I keep yammering about on the difference between a liberty removal claim versus a civil damage claim. What standard is applied by the justices is critical, and if one (liberty) is strict scrutiny and the other (FISA) is rational basis; I think that SCOTUS won’t set aside like they did in Boumediene.
Would this imply selective forgiveness is a legitimate state purpose? Is there some kind of rational relationship in dismissing suits to some kind of national security interest?
No clue. I used to could pull that stuff out of the old noggin sufficient enough for discussion, but I am way past that time. It is primarily in play in equal protection arguments, and I just don’t know how it will be plead by the parties or viewed by the court. Without looking into it more, i am pretty much just musing incoherently. My gut feeling is that the court might view the two situations differently, who knows on what specific basis.
I think its an interesting point. I was just casting about for some deeper insight. With Feingold’s statement to Amy Goodman and Reid speaking of delay maybe some political traction has been gained. I received my first email from the Obama camp since I posted a comment against FISA last week. I unsubscribed thusly:
Don’t think it will hurt to keep the drum beat up.
– I think there is a reasonable chance there are 5 votes to hold the retroactive legalization of warrantless wiretapping unconstitutional. The Boumedienne opinion seems to turn on a separation of powers argument, that you can’t remove constitutional rights by stripping courts of jurisdiction. –
I see enough differences between detention and surveillance, that I don’t share your sentiment there.
Habeas is really an “ultimate” power of a court over the executive. While it’s not “wrong” to look at balance of powers as adversarial between the branches, a better paradigm is that all three branches work in cahoots, against the public.
When the subject is detention without publicly showing cause, the courts become publicly stripped naked and neutered if they stand by and sit on their inherent common law power to compel the jailer to show cause that the detention comports with some law (law of war, criminal law, SOMETHING, ANYTHING!). Even in that extreme circumstance of extended detention without publicly showing cause (in combination with evidence the at least some proceedings below were rigged), only a bare majority of SCOTUS justices felt an urge to say “show us the evidence.”
OTOH, the right of civil action in FISA is one granted to the people by statute, not by the Constitution. The people don’t have an inherent common law power to sue the king.
And so back to my contention that the Courts and the executive are on the same team (mostly), and mindful of the difficulty of showing the courts proof of being surveilled, and even then, difficulty in showing damages, I’m generally of the mind that the courts, and especially SCOTUS, would stay out of the fray.
I see this as a political issue – and draw on the Church Commission for a parallel. I don’t know how much court action flowed from the revelations of COINTELPRO and other government programs to keep an eye on the public, but if there was any, it was low key as afar as history is concerned. Congress passed laws that purported to regulate government snooping.
The point of the argument about court stripping is that regardless of the right to sue under FISA, a statutory right that might be changed by statute, there has to be some way to enforce the Fourth Amendment. In criminal cases, this idea led to the exclusionary rule, a rule with no basis in the Constitution. It arises solely from the importance of having some way to enforce the law. If FISA has no enforcement mechanism, then the Constitution will force the Judicial Branch to create a mechanism for enforcement, just in the same way Kennedy argued Boumedienne.
Or not. I recognize that the Fourth Amendment is a minor inconvenience for the Executive in its efforts to protect us from the terrorists. Maybe it was meant to be that way. FISA wasn’t much protection for citizens who don’t want the government reading their e-mail, but it was something. Those of us who really care about our privacy can take other steps.
I think you and I agree that we are going to become a surveillance state. I think the surveillance is being outsourced to people not even in government, and therefore not subject to any limitation on spying, even one so feeble as FISA. Other nations get along fine without privacy. In five years, we won’t even remember we once were left alone by big brother.
I don’t know.
I think the chances this will be appealed and thrown out are much greater now that a District Court, rather than FISC, will do the fig leaf review. ACLU and EFF have enough competent lawyers to make a decent bid for a higher review.
My sense is that retroactive immunity, once granted in the criminal arena, can’t be “put back into the bottle”, because once criminal immunity is passed, any future prosecution would necessarily be based upon an impermissible ex-post facto law.
If a later congress overturns the coming *civil* immunity, I don’t see the same problem.
Some possibility of statute of limitations problems might remain as to future civil cases, though.
Well, right. And even if the enabling legislation to reverse (which I think is extremely unlikely) contained a tolling exception, or some other statute workaround was devised, would you not run head first into the wall of issue determination, res judicata?
First, I think tolling is inevitable, and wouldn’t need any workaround, because one of the primary motives of the Govt’s actions were in furtherance of keeping the project secret – so the limitation date would be automatically tolled – to begin only at the point at which it should reasonable have been known that the wrong had been committed.
As to res judicata – that assumes a *final* judicial determination that the program was in fact legal (as opposed to the present bill’s language assertion [a legislative assertion] that immunity is available just because *someone* told them that it was legal). imo, the issue wouldn’t be determined until a court, most likely the Supremes, determines the *actual* legality of the program.
obviously, ymmv.
But retrospective immunity itself is an ex-post-facto law, so how can it possibly be legal? Can any lawyers here explain this?
It is legal for one clear reason – when you have the power to abuse your office (either because you buy your way or because you have stacked the courts in your favor, or both) you can. In the days of Reagan (oh, how we yearn for the goold old days!) they used to call it might makes right; now it’s a little less elegant – we do whatever we want and ignore any laws, subpoenas or anything that gets in our way.
Sad thing is that we al are paying for this (and will be for a long time).
But is retrospective immunity actually constitutional, according to any reasonable reading of the constition? Suppose the crime in question was murder, not illegal wiretapping? If Congress passed a law that all murders from 9/11/01 to 1/7/07 would not be criminal violations, would that be constitutional?
– But is retrospective immunity actually constitutional, according to any reasonable reading of the constition? –
There are reasonable arguments on both sides of that question, for the alleged violations of the 4th amendment. I go back to the violations uncovered by the Church Commission, what was the judicial remedy?
NO. It is not, but that will not stop the Bush Administration. When you get down to it, the (many) signing statements that essentially say Bush (or anyone he likes) does not have to abide by the law are also unconstitutional.
Sure. The unconstitutional signing statements should be the basis for impeachment. If the Demos had any backbone this would have been done a long time ago. But it’s still not too late to put it back on the table.
Barney knows more about the internet than McSame?
“because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal.
I disagreed with that conclusion.”
I see.
head of the executive branch…
EPued
Scott Horton has a great read over at his site “No Comment” on the FISA issues!
A most excellent read indeed!
Where’s actBlue? The idea of a separate legal standard for the executive branch plays right into the argument against a two-tiered legal system.
This is what I am talking about:
That is exactly my point. Plus, it proves Bush approved.
Buffy: “We just became an Army. We just declared war”
http://www.youtube.com/watch?v=DC_7Z08-960
hope they go up against Barry The Privacy Slayer
Hmmm…should be interesting…or not.
But in the world of feeble minded, lackey type stooge sycophants, Gonzales is top notch.
-G
“for purposes of those in the executive branch it was legal.”
Right. I agree. Couldn’t be more clear that the theory establishes some kind of legal exceptional ism.
This was to LS@50
Yeah, they are definitely after some kind of exceptionalism…except for this..except for that…except for the law!!
I called Sen. Inouye’s office today and was told he was ‘researching’ the bill and hadn’t made a decision yet… I’m not hopeful one iota since he voted for it last August… However, the aide said it was the #1 topic from his constituents…!
I wish I had collected the Democratic comments about Gonzales, bc I do think it might be a reasonable tactic: remind Democrats how much they think Gonzales is a hack, and ask them whether we really ought to be subject tho his decisions.
um…i think you do have some ready and willing research assistants if only you would give the word and point us in the right direction….
Hmmm. Good suggestion. I’ll do a post for first thing tomorrow. But in the meantime, if your Senator is wavering, try to find their very worst statement on AGAG.
The statements in question would probably come from around May to June of last year, when Dems tried to censor Gonzales.
sounds good. also helps to have something semi-productive to do with all the rage. thanks.
EW, how about Fredo’s testimony on 7/24/07 before the Senate Judiciary Committee?
YouTube has the CSPAN capture of this. There are 32 YouTube parts of this and the 1st one starts here.
That would be a potent angle, EW! *g*
Given the way the Bush DOJ has operated would this not only give neocon Mukasey the role of certify the program but also to delegate the certification process to one of Monica Podlings?
Well we all live under the same laws. Unlock the prison doors and set them all free. Beamish me up Scotty.
Woo Hoo My congress Anna Eschoo called me and left a message saying she had called earlier to invite us to a phone town hall. Damm I missed it! She also asked us to visit her web site and check out her stances on the issues and this is what I found about her stand on FISA:
# # #
she voted for the paa extension in feb (the defeat of this extension is what i think derailed the passage of the senate intelligence committee bill). if you get a chance, ask her why.
And before you do, find a quote of her condemning Alberto Gonzales.
look for a quote from Anna Eschoo before looking for my own senators? (just trying to make sure i have the priorities straight – the only other fisa thing i have cooking is a diary on house kabuki since august).
Here is one with a list of all members briefed. 25-03-01-11-5-06
http://intelligence.house.gov/…..091807.pdf
Look for your own Senators. And while you’re at it, clarify that Teddy won’t be there, and therefore we lost a sure vote against cloture.
Find a juicy statement from your Senator–that’s where we’re focusing next–to remind him that he thinks AGAG is a total idiot, and therefore we ought not to be trading immunity based on taht idiot’s assurances.
What about Mukasey torture quotes? If Mukasey doesn’t care about torture why would care privacy?
ok. here’s one for kerry:
will call (as i’m sure others will as well) kennedy’s office in the am.
how’s this one?
would probably be better to have one with video though.
better than the one i found
Question: Is Rick Noriega still running against Cornyn? Or is Mark Udall the opponent? I’m confused.
from dday at Digby’s:
may I offer a qualified “w00t!”?
I’m holding my breath.
i’ll give it a woot
Modernization is still BS
I saw that too. If this is delayed until after the 4th we need to be out there rabble rousing during the 4th of July weekend telling people that if the Senate votes for FISA they will have fewer rights come the next 4th of July.
I think we also need to picket every local telecom we can find. Considering they are bribing our Senators to vote against our rights I think they need to feel some heat. We’ll let them know that they may be spying on us but we KNOW what they are doing too. We might get some local news coverage (they love covering things when Corp. America is threatened by protesters) that might get even more people to call the Senate who might not have been paying attention to this crisis.
What do you guys think?
Kos has at least part of Reid’s alleged statement posted.
I say alleged because it’s rambling, confused, and reads like he’s losing threads all over the place.
The good news is that they now have so much on their plate that they might not get to FISA before they get to recess: the housing and GI bills are still waiting, and their other constituents will be expecting those to be voted on first.
– Kos has at least part of Reid’s alleged statement posted. I say alleged because it’s rambling, confused, and reads like he’s losing threads all over the place. –
If it’s rambling, confused, error-ridden and incoherent, it’s probably Senator Reid.
But seriously, I listened to the entire comment, and the subject is inherently confusing because he’s talking about an order of business that plans to handle somewhere between 3 and 6 contentious bills in a compressed time period.
The short version is that Reid wants the GOP to relent on objections to Housing. He went on to paint a “parade of horrible delays” that will happen if the GOP doesn’t relent, where one ramification is a delay on FISA. Unstated, but clearly implied is “but if you relent on your Housing objections, those delays won’t materialize, and we’ll get to FISA.”
And on the Housing objection, it’s one or two GOP Senators who are insisting on adhering to the rules (cloture, etc.) as leverage to get their amendments entertained. My guess is Enzi and/or DeMint and/or Coburn. They’ll relent.
Fuck, these guys could’ve given lessons to Nixon and Hoover. Can you imagine if Nixon had tried to make COINTELPRO legal after it was exposed? And I’m guessing COINTELPRO’s nowhere near as big as what the Bush admin’s been up to.
Dugg
I all ready did Neuro but keep up the great digging :>)
The FISA “compromise” passed by the house is an abomination
We have lost control of our government, if indeed we ever had it
Evening Firepups. Hi EW.
Enjoying our NYC visit.
Where in the Constitution does it say the President has authority to determine what is legal?
It’s in the expanded version of Article II that they only give to certain “select” civics students in high school.
are those the ones that were eligible to get jobs (when they grew up) in the Bush DOJ?
I get the feeling that FISA warrants are only applied for when there is a recognized likelihood that resulting intelligence will be used at trial. I’d like to move beyond feeling, but I’m short on facts.
I’m attending a Jeff-Jack Day dinner for Alexandria, VA Dems on Thursday eve. John Conyers will be speaking. I’m planning on asking him to, now that Kommisars Hoyer and Pelosi have decided to rewrite laws without his input from HJC, at least hold a hearing to see if we can determine when this wiretapping started (e.g., what happened in the time period between 1/20/01 and 9/11/01) and maybe subpoena the FISC to see what the basis for rulings in 2007 was that caused pure foreign-to-foreign wiretapping by the NSA to be found illegal under FISA.
Any other (or better) questions for the Honorable Chairman? Maybe he’s pissed he’s been thrown under the bus and can be convinced to cause mischief.
Night all thanks for all the excellent posts!
This bill is a bill. It is not a Constitutional Amendment. It can’t trump the Constitution, anymore than ruling out Habeas Corpus, without a Constitutional Amendment could stand.
The Constitution stands. It rules. The 4th Amendment is clear. It can’t be interpreted differently without an Amendment to the Constitution, which isn’t going to happen.
What stands between us and tyranny is the SCOTUS ruling on whether domestic spying is a violation of the 4th Amendment…perhaps that is why they want to wait until 2009…I sure as heck don’t know. The Immunity part is clearly Obstruction of Justice. It is about stopping lawsuits that could involve members of Congress perhaps.
The new FISA “bill” is unconstitutional and will be stricken down….someday.
Let’s hope that Scalia, Alito, Thomas or Roberts has a skeleton in their closet where they get arrested and convicted of some crime so that Obama can replace them. Any investigative reporters out there working this? lol
Hence the wait until 2009.
They can be impeached for misconduct, but you know that ain’t gonna happen.
I would like to see one of them arrested while Bush is president so that the right-wingers can’t blame the Dems. and convicted during Obama’s presidency so that he can replace them.
If Obama added to the Court he’d be accused of trying to pack the Court. Although the Court handles fewer and fewer cases each year so they obviously need some help. lol
The easier way would be to simply expand the court; it does not have to be only nine.
True enough, but even Roosevelt at the height of his popularity wasn’t able to “pack the court” – although there is a school of thought that a conservative Supreme Court was swayed by the possibility to become more open to New Deal initiatives.
I am having a really hard time finding a quote where Domenici condemns Gonzales. Go figure. I guess I should focus on Bingaman.
CHS has Late Nite
Aaah… The truth comes out…
I saw that earlier tonight which is why I said in an earlier post that we need to picket the telecoms for bribing our Senators to take away our rights.
I forgot to add that the American people may not understand FISA but they understand BRIBERY and what’s more they hate the phone company.
If that is it, it is a pretty pissant bribe to result in eviscerating the 4th Amendment. The average difference in money received from the telcos between the 94 democrats who changed their votes to yes in the House the other day, and the remaining Democrats who kept their no vote is only approximately $3,360.
I don’t happen to think that this is the only reason for the FISA vote (probably not even the main reason) but it is one of them that the American people can fully understand.
EW, I’d like to point you to this SourceWatch link on Alberto Gonzales and in particular, Section 11 entitled “Congressional no confidence and calls for resignation”.
This SourceWatch link on Fredo is a gold mine. Each one of the entries of the stuff below has its own individual link:
How popular are Bush/McBush? So tell me WHY Congressional Dems are such chickens!!
Make sure your congresscritters understand how unpopular the Bush bozos are.
cool, got my talking point for tomorrow’s di fi fax. she appeared on fox news sun 3/25/07 calling for abu’s resignation, saying he had given her personal assurances he wasn’t involved with the attorney firings.
WALLACE: So, you think he should resign?
FEINSTEIN: He called me when I began to become involved in this, and told me I didn’t know my facts. I didn’t know what I was doing. It turns out he wasn’t telling me the truth then, either.
link
Bingo
Perfect.
Michael Corleone got rid of his Fredo because he was weak and stupid – for Bush, weakness and stupidity in his Fredo was his main qualification.
From Hullabaloo
Tuesday, June 24, 2008
Block That Kick
by dday
Senator Reid just informed his colleagues on the Senate floor that, because of all the other bills in the queue (like the housing bill, and the Iraq supplemental), FISA may not get a vote until after the July 4 holiday recess.
schumer:
Here is a good Letter from Cong. Eshoo to Senators Roberts and Rockefeller on Gen. Hayden, May 22, 2006 [pdf]
Alot of other coloected material as well.
http://64.233.169.104/search?q…..=firefox-a
Good night all.
sleep well!
Just a reminder but Comey along with Ashcroft, Goldsmith, and Philbin wrote a letter supporting immunity for the telecoms.
http://blogs.wsj.com/washwire/…..ms-rescue/
So I am not really that interested in his Constitutional angst.
Sununu:
I don’t understand why liberal bloggers don’t quickly come to the conclusion that’s obvious. Mukasey is:
1) a criminal scumbag who should have been in prison long ago–for life.
2) Mukasey is a cowardly little putz who sat on the SDNY federal trial bench and did a number of illegal things. He rounded up material witnesses much like people were swept into Gitmo with no basis for doing so. They had no access to counsel, and they had no access to phone anyone. They were beaten and abused.
3) In one memorable incidence, this little putz with no more medical training than “that’s your pee don’t do it in your pants” purported to diagnose the lack of blunt abdominal trauma with bleeding from the abdominal circulation from the bench.
It’s as if liberal bloggers expect Mukasey to behave like an AG. Get real–Main justice is a major legal clusterfuck. It’s not going to ever improve much no matter who is President and who is AG.
EW will have illegal material to sift through into perpetuity.
Um… because, as I’ve pointed out, Mukasey’s role in this is negligible, like that of a secretary. AGAG’s is still central. If we can point that out in embarrassing ways we might still make some progress.
Mukasey is a good example of my Mukasey principle: No one with a shred of integrity would voluntarily be part of this Administration. *g*
Mukassey has sworn to defend Isreal and has an Isreali citizenship. He is an avowed zionist of coursw he won’t give Isreals sworn enemies habeous. He and Schumer are birds of a feather. Mukassey is a AIPAC supporter a g roup that has spied on USA stolen state secrets and given them to Isreal. I don’t know if he is a PNAC supporter but tw3k knows if he is the one who posted all the links of the dual citizen holders USA/Isreal. He is a firewall for Bushco.
If you are going to do an anti-Zionist rant right, you need how to spell the name of the country you are attacking.
oh shit. how about this one:
my bold.
Oops, blew my chance to make the current point to the Obama camp in my unsubscribe:
There seems to be an apprehension by most Democrats in Congress, Obama among them, of the startup Obama administration’s facing and leading the current national intelligence establishment and cooperating or contracted private corporations after having gone against their wishes.
Obama has said that he will support the FISA bill because it is a compromise, and he apparently wishes to be as compromised as possible before taking office.
I am not so sure the various intelligence agencies are that crazy about Bush’s “Program”past the point of Constitutionality. To some extent, they may be strung out by too much information (and most of it being useless). It’s not that they don’t want to snoop, but they can get by on a rational and legal program; when they truly need to violate those protocols for national security, they will anyway, they always have. Bush wants them to be able to do this with all the time, in all kind of likely unnecessary situations and also be able to cross pollinate the resultant information to traditional court situations. Intel agencies aren’t that concerned with that I wouldn’t think. And they are not worried about telcos cooperating, telcos are required by law to cooperate. As to contractors other than telcos, they will follow the money if we need them.
“If I am right, the government obtained at least nominal authority to search the haystacks, rather than just the needles (although it may be listening to and recording calls only when it believes they actually involve a terrorist or a terrorist affiliate). But even if it has theoretical permission to monitor every call on the gateway switches, I suspect, the government cannot monitor an individual call without first deciding that it’s worth looking into, by finding probable cause. The novelty, of course, is that such findings of probable cause are usually made by judges, not by the NSA or the FBI. If my theory is correct, the January 2007 orders of the FISA court shifted these determinations from the court to the government, using the “minimization” procedures that Patrick noted.
Taken to its logical conclusion, this approach might have eliminated the need for any legislative changes to FISA, now or in the future. If the government can obtain a single order authorizing wiretaps of an entire gateway switch, why can’t it do so for all of the e-mail that goes through facilities maintained by Hotmail, AOL, or any other Internet service provider or telecommunications company? To put it even more starkly, if this theory is correct, why couldn’t the government get a single conventional search warrant to search for drugs everywhere in Washington, D.C., on condition that it not search any particular home in Washington unless an FBI supervisor found probable cause that cocaine was within? Why, in other words, are those scenarios any less “reasonable,” under the Fourth Amendment, than what (I think) the government is already doing under the January 2007 orders? These scenarios may well be distinguishable, but if I were a FISA judge, I would want the government to explain the distinctions.
Putting constitutionality aside, it’s important to see how such an approach would give the government tremendous flexibility. There would be no need to return to a judge or to the attorney general for each person whose e-mail the government wanted to read. Instead, armed with a few blanket orders, the government would enjoy almost unlimited speed and agility to monitor the communications of anyone it suspected of wrongdoing. Final operational judgments about who should be wiretapped could be made by any midlevel supervisor at the NSA.”
real nice breakdown of surveilance.I’ll get the link
link to 144
http://www.slate.com/id/2172952/entry/2172969/
Phone calls aside, if the government mines and does traffic analysis of domestic internet use why not open that data for all to use?
The mining and analysis of internet doesn’t bother nearly as much as makeing a closed and propietary product out of it.
I could’nt even get my billing records from ATT but they get to monitor everybodys email.You can’t even get the code for diebold’s voting machines to verify their accuracy.How are you going to get verification of intel from outsourced intel companies?Proprietary laws are the vault doors for liability.Everything will be outsoursed,especially liability.
I didn’t do it. I was only robbing the register
Ok, this is more humours than thinking about Mukasey.
More comedian quotes.
Clinton:
And Snowe
with a half-hearted hack from Brownback
from marketwatch
Thanks, Marcy, for all the hard work on this! I will try to persuade them but am losing hope at the complete lack of enforcement of the laws.
What next? MoveOn comes out for telco immunity?! Sigh.
Sadly, the intellectual quality of our Congress has been addled by get-rich-quickers it would seem. My favorites are the insipid dolts who expect the Supreme Court, that they themselves sheperded in, will get them out of the political bind they themselves have created for the rest of us to be shut up in.
steny hoyer, 8/27/07
“Attorney General Gonzales lost the confidence of Congress and the American people a long time ago, thus this resignation is as appropriate as it is overdue,” wrote Hoyer in his statement. “There is widespread sentiment that Mr. Gonzales has not been candid and truthful in his representations to Congress and the public. The focus of the Attorney General must be on the Constitution and the law, and the adherence to both, and not on the politics of the Administration.”
linky
Ohhh, that’s particularl good.
rahm emanuel, 8/27/07
“Alberto Gonzales is the first Attorney General who thought the truth, the whole truth and nothing but the truth were three different things. The President should nominate a new Attorney General whose loyalty to the Constitution is greater than his loyalty to the Republican Party.”
da link
DDDDang. Now you’re making me like Rahm.
David Kris is much brighter than I am on this stuff, so I must be missing something I guess.
I don’t know that they are any less reasonable than the January (17th I think) 2007 orders, assuming arguendo that is indeed what occurred January 2007. But I see no overt reason to view such putative January 2007 orders as Constitutional or legal in the first place irrespective of the idea that they may have been issued by the FISA Court. Just so that we keep in mind the provision it would have to be in compliance with as to American citizens and others within the umbrella of the Constitution on domestic turf, the 4th Amendment provides:
How does what Kris is suggesting sufficiently satisfy the particularity requirement? Furthermore, the probable cause requirement has traditionally been held to require that probable cause be determined by a “neutral and detached magistrate”. How does what Kris is suggesting satisfy this requirement? I will grant there may be hypothetical ways to skirt the probable cause by magistrate portion (likely questionably slippery ones), but i don’t see how you skirt the particularity portion.
Thanks.
It’s like recursive plausible deniability or catch the accountability hot potato.
I would’nt say that at all.You’re perceptions are always very insightful.
I think he was referring to the broader brushes that were applied for defining (targets) and (facilities).Alqaeda operatives were stretched out to “agents of a foreign gov” and facilities went from a persons phone number to a gateway switch.Once they got the whole gateway they had to find the needle.They didn’t give a shit about the 4th amend stuff.They just wanted to know how to seperate the needle from the haystack and minimization enabled them to seperate them I think.Who cares anyway if there’s no oversite.These are just legal justifications ,they’re going to do anything they want to whoever they want anytime they want anyway especially when they can get some third rate nsa hack to authorize the surviellance
Well, thanks, but I was being totally serious. Kris is a very bright chap, and his credentials are impeccable. I read him as being a conservative fellow, but no wingnut, and one that affirmatively tries to keep politics out of his work. However, I will say that his perspective is shaped entirely from the perspective of a DOJ prosecutor and senior administrator, i.e. strictly law and order; where mine is entirely from the opposite end of the criminal justice continuum. And the two ends often lend as stark a difference in view as the difference between GOP/conservative and Democrat/liberal. So it could be that and/or I really could be missing something he is including or considering. Or I may be an idiot… (again, a genuine possibility).
Heh, is that you or the Beamish talking…?
And I should point out one other factor in play here that, now that I think about it, I don’t think I have had reason to state for quite awhile, maybe since the blog migrated from The Next Hurrah, and that is that I do not necessarily consider the original FISA law to be entirely Constitutional. I kind of understand and accept it’s necessity and reason for existence, but if one were to ask if I think the whole think is completely Constitutional, the answer would be no. So, I am uneasy with the original provisions, I really don’t like expanding the already questionable. Lastly, keep in mind that the portions of Kris’ analysis we have been discussing relate to the substantive provisions from here forward, not the retroactive immunity grant.
Kris’ analysis is pretty dishonest. I don’t have time to go into it right now (off to the office), but I’ll be back in a bit. I’m not competent to judge his legal analysis, but he’s distorts the historical background behind FISA in pretty deliberate ways.
here’s some more of David
kris’ take on fisa
http://balkin.blogspot.com/200…..rt-ii.html
What I want to know is why do most of the significant people in my non-blogosphere life shrug this FISA vote off as though it is not seriously about them and why am I pestering them so much? They tell me that this is simply the way politics is and no biggie and not to get so excited. Or they are sympathetic, but who has time to make some phone calls about this? It is very dispiriting.
I think of Cassandra warning Caesar about the ides of March. The “Cassandra syndrome” I guess.
Send them this link, might get them to think about privacy differently.
Thanks for the consciousness raising!
This FISA bill is abysmal on many levels. This fight imho is all about the veniality of Bush and the Democratic leadership. It’s about not making them look bad.
Stripping the retroactive immunity out simply insures that Bush will veto it.
The retroactive immunity for telecons is Bush’s smoke screen. The telecons don’t need criminal immunity, their lawyers already secured it from AGAG. Bush wants this bill, because it insulates the telecons from having to disclose those previous grants of immunity, along with who they snooped on and how much they charged American taxpayers to snoop on Americans. The Democratic leadership knows, if they don’t grant retroactive immunity, then they have to investigate the telecons and the Bush WH. The telecons will then produce letters from the AG saying it’s ok to wiretap US citizens. The Democrats will say that violates the 4th Amendment:
Bush will respond, “hey, you Democratic leaders, my henchman told you what I was doing and you had no problem with it.”
That’s why the Democratic leaders want what Bush wants, retroactive immunity. They want to hide their complicity with him. Lower level Dems in the Senate and the House are only too happy to make their leaders happy by following along.
There’s a lot more going on, precedents and stuff, but at its most venial, it’s CYA from the leadership of both parties.
Calpurnia. Cassandra was at another place (Troy), and those were other warnings. (Please forgive the pedantry.)
Sen. McCaskill wrote:
This is just so wrong on so many points.
Did the dozens of highly paid attorneys employed by the telecomms make a “Good Faith reliance” instead of a sound legal analysis? Isn’t that the very definition of legal malpractice? Should those attorneys get immunity for slacking off on the job? If they took assurances from AG Gonzales, and left their shareholders on the hook for millions of dollars in damages, should they be immune to termination?
“…then it is the Administration … that needs to be held accountable.” Exactly how does Sen McCaskill intend to get accountability from an administration that ignores whole sections of laws, selectively prosecutes offenses, shops for favorable legal opinions, ignores subpoenas, refuses to provide documents, and when forced to comply gives out pages heavily redacted to the point of incomprehensibility?
As to telecomms relying on “Government assurances,” should we assume that the telecomms relied on government assurances for their payment, or did they request a check? When Claire McCaskill served as the Missouri State Auditor, did she rely on “assurances” that funds were spent legally? If “Government assurances” aren’t good enough for financial considerations, I don’t want my 4th amendment rights subject to vague assurances.
I really begin to question whether Sen. McCaskill has been paying attention during her stay in Washington.
In the words of Jackie Gleason “You’re the greatest.” George Carlin has seven special words for this con job.
http://www.cnn.com/2007/POLITI…..index.html
So, to simplify this for my parents, a strategy we’re focusing on here in the threads is to get the answer to the following question:
How is the warrantless wiretap program legal/lawful?
Plus, how is the President’s unchecked “say so” legal?
By “unchecked”, I mean a political hack of a lawyer just signed off on it without writing a legal opinion, because the President says, “It is so, because I say so, thus, make it so?”
(And by the way Senators, from both sides, “political hack of a lawyer” was your assessment and you asked him to resign because you failed to trust his legal abilities but somehow, his sign-off on the program, you are willing to stake your constituents’ rights on as well as your own careers?)
While on the subject of the DOJ, I ask the lawyers if there are any rememdies (beside civil suits brought against the politicized hirers) that can be used to reopen cases of employment through Hatch Act violation. For example:
Amend the Hatch Act. Poison fruit of the poison tree logic. Any hire that is the result of a Hatch Act violation is open to review on merits of the hire. If found lacking, hiree is not penalized–it’s not his/her fault. However, they reenter the hiring process competitively, back to square one from day one.
That will have the rats leaving the ship the day after the bill passes. Long lines at the Wingnut Welfare unemployment bureas, where the Regent graduates will soon learn that the welfare is reserved for those wealthy in political capital. Like the Ivy graduated neo-cons. Regent University grads need not apply.
Or, I ask again, can there be a complaint to the Bar, the DOJ having rules that they broke the laws….?
Actually, we ought to be able to go after Elston’s and McDonald’s bar membership, right? No reason they should be able to continue working as lawyers….
– the historical background behind FISA –
Tossed out for consideration … I see FISA as a court-suggested “safe harbor” for surveillance undertaken for foreign intelligence purposes. Without FISA, the government was taking it’s chances that a given snoop would withstand court attack, there was risk of variation between circuits, etc. But there is a short chain of cases, culminating in Keith, where the government was trying to figure out the boundary of snooping.
A few more thoughts – the administration has been seeking court and congressional “buy in” and claiming that one or the other of those per se represents “It’s constitutional” or “it’s the correct balance of powers as per the constitution.”
But this logic is fatally flawed, as Specter pointed out yesterday, when one body or the other is not independent, e.g., Congress passes what the administration offers, and simply adopts, without question, the administration’s conclusion and arguments. See habeas.
WRT surveillance, handling foreign intelligence and criminal and preventive functions “all at once” is non-trivial, and really defies codification. FISA can simultaneously create an opportunity to violate the 4th amendment as against a person, and can infringe on a president’s power to observe for foreign intelligence purposes.
On topic point – I’m not keen on the WMD addition to FISA, especially with the definition of WMB being broadened via statute.
“determined to be lawful”
Heh – did you hear the one about Congress passing a law to change the weird part in the Constitution where the Judicial branch determines whether or not something is lawful? They fixed that part about needing warrants and probable cause too. Whew. Good thing the founders thought that stuff through and made sure a bunch of Chuck Schumers and Harry Reids could change the Constitution at will.[/snark]
Determined by whom is a good question, given that very early on, the Chief FISC Judge was briefed, told DOJ he thought the program was unconstitutional and barred it from the FISC.
And oh yeah, a year later, the successor Chief FISC Judge was briefed on the program and . . . said/did pretty much the same thing.
And oh oh yeah, a few years later, a District Court judge briefed on the program ruled, on the merits, that the program was unconstitutional in a case that later stalled because of standing.
And oh oh oh yeah, the judge where the telecom cases are pending, having not been briefed on the program per se but having had access to a great many submissions about the program, has said in a published ruling that no one could credibly claim such a program was Constitutional.
“determined to be lawful”
yeah, right
– a District Court judge briefed on the program ruled, on the merits, that the program was unconstitutional –
I wasn’t impressed with Judge Taylor’s opinion. It has substantial gaps.
While I strongly suspect that the surveillance was in fact unconstitutional, we don’t a public record that admits “proving it.” Lots of strong inference though, and I concur that the FISC telegraphed actions that indicate at least “that stuff will taint a criminal prosecution” conclusion as to certain programs.
But there are some surveillance that, even though they would taint a criminal prosecution, are just the same constitutional. Some of the surveillance of Truong and Humphrey was held to be constitutional, and that was done w/o a warrant, and before FISA. And THAT was even useful to mount a criminal prosecution.
41/51 “But I don’t think it’s anywhere near as sure a thing as MCA was”
The 5/4 decision on Boumediene with very limited grounds that don’t speak to retroactive immunity aspects for war crimes kind of colors the sure thing aspects on the MCA as well.
cboldt, did you see/hear the Lawrence Wright (Looming Towers) interview with Ira Glass, where the FBI showed up questioning him about Caroline Brown? He needs to be one of the named plaintiffs imo – that ratchets the standing issue up several notches.
72 – I think the separation of powers issue (Congress telling the court they have to dismiss a suit because the EXECUTIVE undertook the JUDICIAL branch functions of interpreting the law and authorizing searches and seizures and highly paid ivy league lawyers working for the telecoms never got a chance to watch the Sesame Street episode on “The Three Branches of Government” – is more likely to pick up the votes than the retroactive immunity aspects.
On retroactive aspects, I think for criminal immunity there might not be much issue, but since this legislation is about taking away the civil penalties that might be owing under lawsuits already filed, I have to wonder if the claim of right hasn’t vested with the filing of the suits and there is a property interest being taken, without compensation, but retroactively voiding civil penalties that might be assessed under lawsuits already filed. Complicated issue that would need research but where some battering could be done.
The points about the statute not trumping the Fourth are correct and I don’t think Congress has been able to do anything about Bivens actions through this legislation, but here is the rub there. In addition to the same “state secrets, we won’t tell you we’ve been spying on you” problem that they have had so far in the FISA damages suit, in a Bivens suit you hae to prove damages.
What FISA does do, that it is NOT Constitutionally required to do, is to ’set damages’ so that a plaintiff does not have to individually prove those damages. Proof of how you were damaged when you can’t prove you were spied upon is going to be very difficult. On the plus side, removing the statutory recovery under FISA also means that the telecoms won’t be protected by that figure as a cap, either. So someone like a journalist or writer or attorney etc. might be able to show they were damaged substantially in excess of 1,000 by the tap.
But since the uncounted hordes aren’t in the equation with no proof for a Bivens action, the damages issues become much more negligible. That’s what killing the statutory recovery does.
– did you see/hear the Lawrence Wright (Looming Towers) interview with Ira Glass, where the FBI showed up questioning him about Caroline Brown? He needs to be one of the named plaintiffs imo – that ratchets the standing issue up several notches. –
I may have, but if I did, I don’t remember it. I’ll look it up, thanks for the tip.
Agreed to, about the value of a statutory remedy for violations of the 4th outside of a criminal prosecution. It’s a way to deter offensive behavior, otherwise not available.
– The point of the argument about court stripping is that regardless of the right to sue under FISA, a statutory right that might be changed by statute, there has to be some way to enforce the Fourth Amendment. –
I absolutely agree as a matter of principle. But enforcing the fourth against secret surveillance has practical issues. See Church Commission.
I think it bottoms out on trust between the people and the government, and at some point, breakdown of trust impinges on the legitimacy the people grant to their governors.
I think it goes far past the government. The information goes to too many non-governmental groups under the outsourcing the republicans love so well. Even if we had a government that was entitled to be trusted, there is no such thing as a trustworthy corporation.
– Even if we had a government that was entitled to be trusted, there is no such thing as a trustworthy corporation. –
Agreed. But just as a technicality, if the offensive action isn’t by or bought by the government, then it isn’t a constitutional violation.
There are some old developments that built the foundation for the privacy invasions of today, including banking regulations, obligation to obtain government issued identification, access to (some) public services, etc.
I need to think more about this (it’s very late here and I have to get up early), but it is the combination of executive action and outsourcing that worries me.
– it is the combination of executive action and outsourcing that worries me. –
Outsourcing government functions can be trouble, or can be smart. As usual, “it depends.” But I share your concern – outsourcing creates new opportunities for mischief, including the time-honored “he did it” (point one way with one hand, and another way with the the other) defense.
OT, reporting from Beijing.
Following a remark of EW, I took a long walk today, visiting the Hutongs, or alleys, of Beijing. Not the one being renovated, north of the Forbidden City (I saw that one too), the ones to the south, behind the beautiful walls and the pretty landscaping for the tourists. These are truly poor people, living in one or two rooms, with a toilet in a storage room, and no obvious place for a shower. The shops are poor too, with a few items on display, or a basket of electronic parts being picked apart, a bike repair shop, motor parts in baskets, and so on. Muddy, narrow partly paved streets, rusted tools hanging from the walls a few pathetic plants and a lot of bristly weeds.
There weren’t a lot of people around during a work day, so I imagine they have jobs. Most of the young people I saw there were pretty well dressed, and seemed purposeful. This Hutong didn’t look as bad as the pictures I have seen of some slums such as the favelas of Brazil. I didn’t have time to check but one of the several areas like this.
I have no idea at all about the lives these folks lead, and I wish I did. I wonder what kinds of schools they go to, and what they do with their lives.
In the gentrifying Hutongs of North Beijing, we had a separate guide, who told us about the home bought by a French journalist (unnamed) who paid 2,000,000, and spent a million or more renovating. I saw another one in the process of being renovated. Inside, it looked like a small version of the home of Prince Gong of the Qing Dynasty. This is being done under historical preservation rules that sound like typical US rules. The State owns most of them, and selling them creates revenue for the State. There is a stream that flows into the waters of the lake at the Summer Palace, and it is really choice real estate.
I wasn’t really thinking of the hutongs (though I’m glad you got to both the beautiful gentrifying ones above Forbidden City and some real ones.
When I was working in Beijing, my hotel was in the western part of the city (not far from the Summer Palace). There’s a big suburb where the party leaders live–and the dealer I was working with was directly between the party leaders airport and that suburb. So it had a lot of new infrastructure tailored to the.
But my hotel was south of there, in a more residential neighborhood. There was a big open field close by that we drove by on the way to the dealer. And it was clear that a lot of people were living in the field–with almost no shelters at all.
If they’re lucky, the migrant workers live in corporate supplied housing. For example, all the service employees at the dealer I was working in lived in a dorm just behind the dealership. They got fed, too, in an onsite cafeteria (the food wasn’t bad, either). But when you’re in situations like that, you’re dependent on the good will of your employer which is not a great plan.
But as I understand it, there are millions of migrant workers (even more in Shanghai than in Beijing) just living in fields until they get something more stable.
called both the boston and dc offices for kennedy this morning:
boston: senator kennedy is resting at home and wants to get back to dc as soon as possible.
dc: senator kennedy is undergoing treatment and won’t be back in dc until the treatment is complete
Which means we lose another certain vote against immunity.
When my dad went through treatment for brain cancer (it was in a less sensitive part of the brain), right after surgery they did a 3-week radioactive isotope treatment which required hospitalization (though for Teddy, I’d imagine they can do it at the compound), followed by less invasive regular radiation treatment, which my dad was able to do while he was back at work. But that was before they started chemo for brain cancer, so I have no idea what that would entail.
And of course, my dad was 56 at the time, not in his 70s.
Which is a way of saying that Teddy’s not going to be back to the Senate for a while.
– Which means we lose another certain vote against immunity. –
My guess is that however the issue of retroactive immunity is taken up, it’ll take 60 AYE votes to strip it. Status quo = immunity is in. It takes a supermajority to disturb status quo on a contentious matter.
True, but Kennedy was also a filibuster vote.
Why can’t they beam in his vote. Kennedy on the big screen. Why can’t he still vote?
No sort of firm schedule has been announced from the floor of the Senate either. Still gridlocked on the Housing Bill.
89 – Ron, if you see this, if you are interested, if you could, if you would (if if if) ask Conyers if anyone has ever asked the telecom execs in those closed sessions whether or not they were told or were aware:
a) that Judge Lamberth told DOJ he thought the program was unconstitutional and barred it from his court;
b) that Dep AG Larry Thompson would not sign FISC applications (presumably bc he was afraid of liability either from violations of FISC firewall orders or otherwise); or
c) that Judge Kollar-Kotelly told DOJ she thought the program was unconstitutional and barred it from her court.
For that matter, whether the telecoms knew, or did not know, that the Gang of 8 had not been briefed and that the Senate Intel committees had not been briefed.
Shouldn’t someone at DOJ be looking at really big problems if they failed to communicate back to OLC and the President and the telecoms the FISC position? And if they did communicate the Court’s position, then how could anyone claim Presidential or telecom good faith?
92 – I think the issue preclusion/estoppel, as between gov (which intervened in the existing suits IIRC) and the telecoms, is going to be hard to get around. If gov is going in under the civil suits and telling the courts the telecoms were, in essence, acting without mens rea, it’s going to be hard for gov to come in a criminal suit and take a different position.
189 – I have many and varied thoughs and on all that *g* and it’s probably too much to try to get into here when I have to get back to work, but Truoung IIRC was not a US citizen and some of the surveillance was “foreign grounds” embassy based wasn’t it? In any event, old FISA was a very careful statute that, I agree, was crafted to try to be a safe harbor based on existing case law. If you read it carefully, it really didn’t even “allow” for the FISC to issue orders for situations involving agent of foreign power to agent of foreign power communications and I think this was done with purpose. Since the few S.Ct cases did mention that there was an Executive branch power to engage in warrantless surveillance of agents of foreign power for national security purposes (I believe the statute’s language there is lifted from the case footnotes but I’d have to go look), then you would have a big separations issue for Congress to write legislation that required court orders for something that can be done without court orders (according to the Court) and whether Congress could step into that area to prescribe how the Executive could act might not be allowed.
So “old” FISA required that those were AG decisions and only required reports by the AG to Congress. OTOH, the “old” FISA also limited that warrantless AG power to agents of foreign powers, not all foreign located persons, which is where the new drift has gone. That is NOT in any prior case language to my knowledge. And while Truong involved a non-citizen (did it involve criminal charges or deportation as the sought remedy?) when a US citizen was involved (the White Panthers) the same arguments being made about the “need” to warrantlessly surveill US citizens too bc of their ties with all these foreign subversives, was made and argued as part of the Mitchell Doctrine (IIRC) and that was a part of what was submitted to the court, along with the fact that the warrantless surveillance of the white panthers was not being “used” at the trial against them.
And it failed.
In any event, the new statute is a gobbledygook that isn’t tied to what any prior cases have said, sheds the agent of foreign power and specifications of national security need for the seizing and searching of communications, and pretty much sets up something that is actually an ADMINISTRATIVE basket/blanket warrant approach, but with the imprimatur of it somehow being a FISC/Judiciary process. The old statute did keep a probable cause standard for issuance, but shifted the probable cause to be probable cause that the US person was in communications with an agent of a foreign power – now there is really no foreign power aspect and no judicial probable cause element and only an “as long as we don’t know for sure that both parties are definitely in the US” we can just act administratively through the AG and numerous agency persons, but under the pretense that this is all taking place in the courts.
I have wondered how much of that has to do with the other countries the telecoms are operating in and the SWIFT fiasco. Part of the problem in SWIFT was that the US was issuing what it will be here under the “new” FISA – administrative blanket warrants and not judicial specified warrants. When the bank clearinghouse got taken to the European privacy court, it was told that the European laws for its customers were clear and the required a judicial warrant and the US system of administrative warrants, coupled with having McConnell’s Booze firm provide “auditing” not only didn’t cut it, but no idiot would have thought it would cut it.
Upshot that doesn’t get discussed much – the clearinghouse and all the lovely US access we had is moving out of the US because of all the DOJ pressure to engage in illegal actions.
I just never hear anyone discuss the laws of all the countries where these telecoms are doing business and what they required. If the Soviet Prime Minister does what the President did, then can the Soviet munitions manufacturers listen in on Boeing and Lockheed calls? Ok, maybe not that specific example, but you’ve no doubt got my drift.
– Truoung IIRC was not a US citizen and some of the surveillance was “foreign grounds” embassy based wasn’t it? –
Humphrey, his co-defendant, was a US citizen. Truong was not (he was Vietnamese) The warrantless bugs were on Truong’s apartment and personal phone. At any rate, the question of “foreign intelligence” doesn’t turn on citizenship, is my point. See too, Aldrich Ames.
– In any event, the new statute is a gobbledygook –
I agree completely. It’s an attempt by the administration (it’s their language) to make the law as it pertains to the fourth.
Hi Mary, I just saw your comment. If you get this, please email me at rdlafond at gmail dot com if you have time and give me a little more info on where you’re coming from. I’d love to bounce ideas off you to see what I can get Chairman Conyers to discuss and maybe how to press him.
Speaking of the “he did it” defense, and definitely on point of surveillance, read the Jabara series of cases. The two “he’s” in the “he did it” are the NSA and the FBI.
US v. Truong, 629 F.2d 908 — Link for anybody who cares to dig a little deeper.
The telcos knew that what they were asked to do was a violation of FISA. Although I was harshing on David Kris a little earlier, he does make two incredibly important points that are often overlooked. FISA was absolutely clear that the NSA’s vacuum cleaner style surveillance of ‘domestic to foreign’ wire communications was illegal if done inside the U.S. Kris goes to a lot of effort to obscure the ‘why’ of the prohibition, but nobody in the Bush-Cheney administration and nobody at the telcos had any doubt that, under FISA, letting the NSA tap your switches was illegal. The second point that Kris proves is that the Administration’s claims to Congress that ‘When FISA was passed, almost all international telecommunications were in the air’ was completely false. Kris calls it an exaggeration, but he demonstrates that less than half of overseas communications traffic was carried via satellite when FISA was passed.
many thanx for the link
EW “That’s how cheap our laws have become”
Our children our watching … the whole world is watching
Entering the conversation WAAAAAAAY late, but I’m wondering about something:
We know that Qwest had already refused to deal without a warrant as early as FEBRUARY – so does this mean that any spying done BEFORE September 11 is NOT covered by immunity? Is there any way we can use this to our advantage?
I sent something reminding Congress critters of this a couple of times since we started the fight – has ANYONE in the Senate or House even approached the issue of starting the spying BEFORE September 11? It just seems to me that leaves a bit of a hole in their reason for spying in the first place, and I’d like to see an explanation for that part of it – publicly, on the floor of the Senate, and as often as possible.
Yes–the immunity only protects the post 9/11 stuff.
But I think the pre-9/11 stuff is just the infrastructure capability–the ability to get right into the networks.
Plus you don’t need immunity from civil suits that can’t be filed