The Obama & Olbermann Master Plan For Criminal FISA Prosecutions

Okay, the words "Master Plan" in the title are a joke. So is the idea of criminal prosecutions, by a future Obama Administration, for Bush era FISA violations that has been hawked, to the point of near belligerence, by Keith Olbermann both on his show and in a running flame war with Glen Greenwald. The instant article will attempt to relate some of the glaring reasons, from a practical criminal justice perspective, that the Obama/Olbermann master plan is naive, almost to the point of being comical. Comical that is if we were not literally discussing the life and spirit of the Fourth Amendment and the health and well being of the Constitutional rule of law in this country.

This is the exchange between Olbermann and Dean from which Olbermann appears to have ginned up his Obama genius master plan narrative:

DEAN: Well, I spent a lot of time reading that bill today, and it‘s a very poorly-drafted bill. One of the things that is not clear is whether it‘s not possible later to go after the telecoms for criminal liability. And that something that Obama has said during this campaign he would do, unlike prior presidents who come in and really give their predecessor a pass, he said, “I won‘t do that.” And that might be why he‘s just sitting back saying, “Well, I‘m going to let this go through. But that doesn‘t mean I‘m going to give the telecoms a pass.” I would love it if he gets on the Senate floor and says, “I‘m keeping that option opened.”

OLBERMANN: In other words, let the private suits drop and get somebody in there who‘ll actually use the laws that still exist to prosecute and make the actual statement and maybe throw a few people in jail.

DEAN: Exactly. And it looks to me, as I read this bill and talk to a number of people in Washington familiar with the bill, some who are involved in the negotiations, and they say, “You know – we just didn‘t think about this issue.”

Notwithstanding Olbermann’s fiery preacher in a pulpit exhortations, it should be noted that John Dean himself has walked his statement back from Olbermann’s claims since his original offhand quote:

But even if the bill is unclear there is no question the Bush Administration is not going to do anything to the telecoms, so the question is whether a future DOJ could — and here there is case law protecting the telecoms. But there may be language buried in the bill that protects them as well but it can only be found by reading the bill with a half dozen other laws which I have not yet done.

I made no declarative statements rather I only raised questions that jumped at me when reading the 114 page monster.

In spite of the fact that Dean himself has rendered the putative operative basis of the Olbermann/Obama master plan meaningless, it appears that Olbermann intends to keep flogging it; having posted at DKos on the subject and having MSNBC incessantly advertising his upcoming petulant rant "Special Comment" on the subject set for Monday night June 30. So we can knock this turkey of an argument back to the contrived desperate corner it came from, let’s assume that prosecuting telcos criminally for their FISA violations under Bush really is the master stroke of genius behind Barack Obama’s recent inexplicable cave, capitulation and wholesale sellout of the Constitution, Fourth Amendment and rule of law for the American people. What would come of these criminal prosecutions? Absolutely nothing, and what follows is only a partial list of the numerous reasons why.

WHAT CRIMES? – Neither Olbermann, Dean, Obama, nor anybody else discussing this hypothetical pipe dream has indicated exactly what crimes they think might be charged. Let us be clear on one thing, simply because a proscribed activity is unconstitutional does NOT make it criminal. For a crime to be charged, there needs to be a specific provision of the US Code (USC), or other statutory provision, making said conduct a crime. It is crystal clear, from the collective record to date, that the participating telcos were compelled by the Bush Administration to assist and were given written assurances that their cooperation was necessary for national security, legal and authorized by the President of the United States in a supposed time of war. That pretty much eliminates any crime that requires criminal intent by the perpetrator, and leaves only what, in criminal law, are known as strict liability crimes, of which none come to mind. The only cogent possibility is the criminal offense defined under the FISA law (18 USC 1809) which, you guessed it, requires specific intent. How are you going to prove that here? Oh, and by the way, this assumes that the Obama Administration is willing to actually have the cojones to prosecute; Obama has shown absolutely nothing of substance to indicate that this is the case; in fact, he consistently indicates he wishes to move forward and not expend energy on the past, especially on contentious partisan issues.

STATUTE OF LIMITATIONS: – Even if you could identify specific crimes to charge telcos and/or their owners, directors and personnel with, the crime must be viable and ripe for prosecution. The first question any criminal defense attorney is going to ask is "Gee, is this crime within the statute of limitations"? FISA is subject to the Federal general statute of limitation contained in 18 USC 3282, which is five years. And, remember, the statute starts to run when the crime is committed and/or when the government becomes aware of the conduct; in this case the Department of Justice knew about the conduct as, or before, it was being committed. When we, as citizens learned about it is not the relevant test. Obama, assuming he is indeed elected, will not be issuing indictments at the end of his inaugural address. The FISA Amendment Act provides for an investigation and report of the Bush/telco wiretapping/datamining and snooping to be completed by applicable Inspectors General within one year of passage; assuming Bush signs the FAA in mid-July, that would be mid-July 2009 for the report. The Bush Administration will not be working diligently to effect this while they are still in office; any meaningful work will have to be reviewed and/or performed under the new administration It is unrealistic to expect that any charges could possibly be filed before said said report is due, so any act occurring prior to about July 15, 2004 will not be within the statute of limitations and will be barred from prosecution. That will eliminate the lion’s share of the overt acts and violations that are the subject of the currently pending civil lawsuits, pending in consolidated form in the Northern District of California in front of Judge Vaughn Walker, that are to be dismissed. Where will be the justice, rule of law, and equal protection of law guaranteed by the United States Constitution for these American citizens and subjects? How do Mr. Olbermann and Mr. Obama account for the rights and lives of these victims with their genius master plan; or are they simply expendable in the face of their petty political ambitions?

REASONABLE DOUBT: – Let’s assume the master plan makes it past the previously described hurdles. What happens when these putative criminal charges get tried to a jury? Well, as we all know, the standard of proof is "beyond a reasonable doubt". We already have established conclusively that the participating telcos are in possession of certifications and authorizations from the United States Government, authorized and demanded by the President of the United States and the Attorney General of the United States (except a single brief interlocutory period where it was counter signed by the White House Counsel) asserting and avowing that the requested conduct was legal, constitutional, and necessary for national defense and security. This was occurring after 9/11 and in a putative time of war and under repetitive terror alerts by the United States Government and Department of Homeland Security. Now, tack on to that evidence that Congressional leaders of both parties were briefed and consented to the activity to some extent. Then the clincher. Both houses of Congress, not one, not two, but three different times voted to ratify, approve, and legitimize the conduct in question via the Protect America Act, extension of the Protect America Act and, finally, passage of the FISA Amendment Act. Keep in mind that the FISA Amendment Act dismisses civil cases for the same conduct, which have a far lower standard of proof (preponderance of the evidence) than the criminal charges that will be under consideration, because it was deemed legal, proper and necessary by the Congress. Now, add all that up. Exactly what jury do you think is going to find a telco defendant guilty beyond a reasonable doubt? A monkey could successfully argue this defense to a jury; heck, Alberto Gonzales might could even pull it off (although I would take my chances with the simian).

WHAT IF BUSH PARDONS ALL TELCO CORPORATE AND INDIVIDUAL DEFENDANTS? – Yep, as you may recall, there is an easy way for criminal perps to Scoot out of responsibility for their criminal conduct performed for the Bush Administration. The Constitutional pardon power, which, under Article II, Section 2, is unfettered. That would completely remove any ability of a successor Obama Administration to prosecute under the vaunted, Olbermann/Obama genius master plan.

WHAT IF OBAMA LOSES AND McCAIN IS THE NEXT PRESIDENT? – This one is fairly self explanatory. Curiously, I have not heard it addressed in the Olbermann/Obama secret master plan.

Well folks, there you have it. These are just a few of the glaring problems. Telcos hire the best, most persistent, and most capable lawyers available. Always. They will not be being represented by some sleepy, understaffed and overworked public defenders; they will have the best criminal defense talent in the world. It will not be necessary; a child could win these proposed Olbermann/Obama master plan prosecutions. So easy that even Alberto Gonzales could carry the day. Bottom line, this is one of the most ridiculous non-starters I have ever heard. If this is the "Master Plan", we are in a world of hurt.

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66 replies
      • Professor Foland says:

        Wikipedia (I know, I know!) says

        The defense “applies when, acting with actual or apparent authority, a government official affirmatively assures the defendant that certain conduct is legal and the defendant reasonably believes that official.” United States v. Howell, 37 F.3d 1197, 1204 (1994).

        is entrapment by estoppel.

        Of course, one of the judges’ rulings has gone after the “reasonably believes” clause, IIRC.

        • bmaz says:

          I think we have only a distinction of semantics in some regard. But in a courtroom, I would never call it entrapment, because a required element of the entrapment defense is that you admit that you committed the crime, just that you would not have been predisposed to do so but for the government’s conduct. I would never admit to my clients having committed a crime here. But the factual premise we are discussing is identical.

          • Professor Foland says:

            We’re having a difference of: you know what you’re talking about, and I’m throwing spaghetti at a wall. But I’m always happy to learn why it’s not sticking : ) Admitting you’ve committed crime I can see one might not be so keen to do.

  1. BayStateLibrul says:

    Great post…
    I lost all faith in KO when he unmercifully went after Hillary.
    Thanks…
    We are fucked.
    There is no such thing as “retroactive”

  2. libbyliberal says:

    So we can knock this turkey of an argument back to the contrived desperate corner it came from, let’s assume that prosecuting telcos criminally for their FISA violations under Bush really is the master stroke of genius behind Barack Obama’s recent inexplicable cave, capitulation and wholesale sellout of the Constitution, Fourth Amendment and rule of law for the American people.

    Wow. Thanks for the thought and wit. I need to read over a few times for sure! BUT Love that sentence above with its climax, “and wholesale sellout of the Constitution, Fourth Amendment and rule of law for the American people.” But what do you REALLY think about his stance??? Great stuff.

    Why does there need to be a FISA vote at all? Aren’t the courts and court cases all in place? Once again there is codependent upstaging of the duties of the branches. I mean, the imperial regime of Bush/Cheney is the winner on this sabotaging of rightful power. And managed to corrupt the other branches profoundly. But now the Congress is shoving into the dimensions of the court.

    What a shame Olbermann has volunteered as Obama apologist.

  3. MadDog says:

    bmaz is giving us a defense attorney referral to the Filipino Monkey – “I am coming at you” and “you will explode”?

    Well…gulp…ok, if you say so. *g*

  4. DanC says:

    If telcos always hire the best lawyers available, mustn’t they have been damn certain that what they were being asked to do was illegal, despite any assurances to the contrary, and “time of war” notwithstanding (particularly if the warrantless wiretaps began pre-9/11)?

    • MadDog says:

      One thing that I’ve learned with great difficulty, is that what you and I think about the “law” is far, far different from what major players like Telco lawyers think about the law.

      In fact, what these major players think about the law’s applicability to them or even whether white-collar criminality exists at all, is most mind-boogling.

      That said, the folks who have the most radical view of the law are actually the folks who write the laws. Yes, our Congress critters!

      Laws are something these Congress critters scribble down on pieces of paper, but they themselves “know” that a comma here or a period there can and does often make all the difference between legal and illegal.

      And they “know” too that “legal vs illegal” is mostly a result of compromises, trading favors, scratching backs etc. between competing Congress critters.

      To our Congress critters, there ain’t nothing sacrosanct about laws. That’s just making sausage to them.

      • DanC says:

        Good points, MadDog. Tho if all this is true, the telcos shouldn’t have had reason to fear any fallout from not cooperating with the wiretap program.

        • bmaz says:

          Well, it is an incestuous and symbiotic relationship that has been forged and set over numerous decades, literally since the birth of the telephone system and, to some extent, even before with the telegraph. There is simply a ton of deference by communication providers to the government in regular law enforcement and that is geometrically so in national security matters. Quite frankly, that is not necessarily preventable, and not necessarily a bad thing; but it requires a certain amount of respect for the unchecked power and the overall rights of citizens and the rule of law. That has been completely blown apart by the Bush Administration.

          It is also true that telcos depend on government monies for a lot of income, so that should not be discounted either.

        • MadDog says:

          Yes, and the fact that the Telcos, with the exception of Qwest, did not stand up to this Administration has left the original FISA “good intentions” of a corporate firewall against illegal government actions in smoking ruins.

          The Administration claims these “smoking ruins” are those of 9/11, however the truth is that they are the “smoking ruins” of our Constitution.

    • bmaz says:

      I believe they were under great pressure to assist, and, let’s be honest, there was a mass hysteria injected into the populous from 9/11. Mostly, however, I don’t think criminal liability was ever the concern for the telcos and their legal teams for the reasons delineated above and more. The chief concern was civil damage liability, which I still maintain was likely mitigated through some type of indemnification arrangements/agreements. There are a lot of moving parts to this overall equation, but it is hard to see how the telcos really feared criminal prosecution then or now; that fear is entirely on the part of the Bush Administration actors who are so desperately trying to hide the ball of what they have done, that is why they have the single minded determination to obtain retroactive immunity and shut down potential avenues of discovery. And, at this point, contrary to the statements of many, I think Vaughn Walker might just be inclined to give it to the plaintiffs.

      • DanC says:

        Granted, there no doubt was great pressure to cooperate; I simply cannot buy the suggestion that the telcos had no idea they were doing anything wrong. By the way, I’m not arguing that Obama or anyone is right in letting telcos — or the Bush administration — off the hook.

    • neurophius says:

      The Obama FISA group now has more than 3,000 members and ranks ninth among Obama groups in total membership.

  5. Loo Hoo. says:

    The stance and the scoot. Clever, EW!

    This was occurring after 9/11 and in a putative time of war and under repetitive terror alerts by the United States Government and Department of Homeland Security.

    Why am I thinking this began before 9/11?

  6. northdome says:

    bmaz, Great post. Hope you send it to Olbremann before he makes his comments on monday.

  7. Tross says:

    Thank you! Glenn said as much as soon as Olbermann floated this nonsense.

    Either Obama protects the Constitution now, or he’s as manipulative and calculating as any other politician (no surprise there).

    Now, what do we do about it?

    I’m starting to realize that the America I learned about as a child may be gone forever. I don’t know if I’ll ever get over that, but I’ll adapt.

  8. Mauimom says:

    Thanks, bmaz.

    I think Olbermann’s dug himself into a f***ing hole here. I hope he’s got enough sense to get out before Monday’s promised “Special Comment.”

    I think KO’s ego is too great for him to listen to us DFH’s, so the only solution I can come up with is for all of us to e-mail him and say, “hey KO, go talk to Jonathan Turley. He’s smarter than ALL of us [including Dean] on this. Listen to, and be educated by, him before you attack your typewriter.”

    Just a thought.

  9. Ron1 says:

    Re: pardons. Please correct me if I’m wrong, but I don’t think someone can be pardoned for a crime that they haven’t been charged with. That is, it would be a stunning expansion of the pardon power if the President could simply pardon all of his associates from crimes that they may have committed while in office/federal service. Now, that doesn’t mean that Scalia/Thomas/Roberts/Alito won’t expand the pardon power thusly, but it sure as hell seems like an unconstitutional power grab that would be another dangerous step for our republic.

    Are there any instances where someone has been pardoned for a crime that they haven’t been at least indicted for?

      • Ron1 says:

        Huh. Duh, on my part. But Nixon at least had been impeached.

        Still, I guess you’re right. Not good.

          • MadDog says:

            And then there was the wholesale “pardons” that Carter gave to Vietnam draft dodgers in 1977.

            Seems like there is a never-ending flexibility in Presidential pardon power, though to if Junya were to try and pardon himself, I’d bet a nickel or two that said flexibility would get some serious hamstringing.

          • Ron1 says:

            Yeah, my fingers got ahead of my brain. I self-corrected.

            I guess we are entering Nixon territory. And I agree with bmaz’s general point that I doubt we’ll see investigations of Bush crimes under an Obama presidency — but if Edwards is AG, maybe there is hope for investigations.

            I guess we’ll need to amend the Constitution to remove the President’s ability to pardon, or at least to severely curtail the power. Way too useful for illegality.

  10. Mr.Cbl says:

    bmaz,

    they may be glaring to you legal types, but this non lawyer very much appreciates your laying them out in such a coherent, digestible fashion.

    KO has gone Full Metal O’Reilly in his response to Glennzilla – sad

    • MadDog says:

      If KO was truly openminded, he’d do just that.

      Too often however, I think KO, like many other folks, latches onto an “expert’s opinion” with which he already agrees, and then singlemindedly defends this opinion despite real facts and truth to the contrary.

      Barring an unlikely brain fart reality intervention, I’m guessing KO will climb all the way out on his chosen branch and proceed to vigorously saw it off come Monday’s “Special Comment”.

      • bmaz says:

        I love Olbermann and he was pretty much a lone wolf for a lot that we support for a long time, and he is smart and eloquent. He is due some slack for that, but he used up a fair amount of it in my mind for his over the top shilling for Obama and blasting of Clintion during the primary. I knew he was going to do it every day, and it still gored my ox; he isn’t Walter Cronkite to begin with, he should have just admitted what his mindset is. And now this is kind of the same deal; he almost seems consumed with Obamamania to the point of irrationality. But people trust him like an oracle, and the oracle has been off kilter lately. Badly off kilter currently.

  11. Neil says:

    Olbermann has gone farther out on a limb than any other MSM guy with a one-hour daily political TV show. Before Olbermann no one on tv was covering the same stuff being written about in the liberal blogosphere. We really do owe him thanks for that.

    This whole tiff with Glenn is unfortunate, especially for Olbermann. It think Keith is walking around with a loaded ego. I hope Glenn recognizes that and disarms.

  12. BooRadley says:

    Let us be clear on one thing, simply because a proscribed activity is unconstitutional does NOT make it criminal. For a crime to be charged, there needs to be a specific provision of the US Code (USC), or other statutory provision, making said conduct a crime. It is crystal clear, from the collective record to date, that the participating telcos were compelled by the Bush Administration to assist and were given written assurances that their cooperation was necessary for national security, legal and authorized by the President of the United States in a supposed time of war. That pretty much eliminates any crime that requires criminal intent by the perpetrator, and leaves only what, in criminal law, are known as strict liability crimes, of which none come to mind. The only cogent possibility is the criminal offense defined under the FISA law (18 USC 1809) which, you guessed it, requires specific intent. How are you going to prove that here?

    What about filing a Federal False claims act for the misuse of Federal resources?

    That might force some disclosure, which would lead to greater specific knowledge about specific crimes, what sums of money were used for specific covert actions. Once the WH shifts a military action into the classified bucket, the opportunities for government fraud grow exponentially. My guess is that a lot of those covert ops will in the transparent light of day look like huge boondoggles of government waste. Bush and Cheney can’t claim they didn’t know, but the DOJ can, hence no SOL problems.

    • bmaz says:

      That is back to civil action, and Qui Tam actions are incredibly weak vehicles to effect anything like is necessary here. Any civil action would be brought under the same umbrella for dismissal as the current suits. Lastly, there are so many other hurdles as far as finding proper parties plaintiff, state secrets, statute issues, and the fact that the whole ball of wax on Qui Tam flows through the DOJ, and the DOJ would poison pill it one way or another. Inventive try, but ain’t happening.

  13. Ron1 says:

    FWIW, I spoke to one of Conyers’ legal staffers after the Alexandria (VA) Dems Jefferson-Jackson Dinner. Conyers was being shepherded out of the room by the rest of his staff after about 30 mins of shaking hands with all the elected city and state Dems there, no real time to talk with him.

    I asked why, if this terrible bill was going to pass, they in HJC couldn’t at least hold a hearing where they subpoenaed the certifications the telecoms received to convince them to participate in this whole scheme — so that we the People would at least have some idea of what went down before it’s all waved away magically. The staffer was a nice guy, but basically hemmed and hawed that Pelosi and Hoyer wanted this bill for political reasons (to prevent getting conservative/Blue Dog members from getting tarred and feathered this fall) and that there wouldn’t be any further investigations of the program. I asked again why not at least hold hearings, in open session, questioning the telecoms about this program, b/c they can’t clam up due to executive privilege. His basic answer — it’s just not going to happen.

    So, that’ll be that. I had some points that the inimitable Mary told me to ask (from a previous thread), but they just aren’t interested in this set of crimes at HJC it seems.

    Conyers gave a very moving speech, about the historical page we’re about to turn, and spoke about the connection to the Civil Rights era. He said he’s going to try and build a record of the Bush/Cheney over-reaches as much as possible, but he’s just not interested in impeachment, and called it a ‘time issue’. And as elegant and scholarly a gentleman as he is, it just made it all the more clear to me why we shouldn’t have people in office for 40 years — the fire recedes. The old guard of the Dems just don’t have the anger of betrayal that they did when Watergate occurred.

    • hackworth says:

      There was plenty of time and sufficient public support for impeachment after the Libby pardon. Pelosi’s taking it off the table on the citizens’ behalf is a dereliction of duty.

  14. hackworth says:

    The Nation Magazine sez (paraphrasing here) that if Bushco stopped sabre rattling with Iran, oil speculators would stop betting the farm on oil futures. Iran has the second largest oil reserves next to Saudi Arabia. Arrogant warmongering is driving the futures market. All Bush has to do pop the bubble and reduce oil prices quickly is to state that military action against Iran is off the table.

    • Neil says:

      A trick the oil men learned watching Enron manufacture an electricity shortage in California.

    • brendanx says:

      Unfortunately, the desire to start a war and to goose oil prices are not mutually exclusive.

  15. hackworth says:

    Obama has backed away from some populist positions already. NAFTA and free trade, and FISA.

    From The Nation’s John Nichols:

    Obama told Fortune Magazine that he no longer believes in unilaterally reopening NAFTA and earned praise from the magazine for “toning down his populist rhetoric.”

  16. yonodeler says:

    I don’t believe that there will be any prosecutorial campaign against the assisting service providers when the new administration takes over, even if an avenue or two could be found to make a token effort. My best hope is that some investigative proceeding(s) concerning surveillance or any of several other conduct issues will catch some miscreants in provable perjury, obstruction of justice, violation of oath, or contempt.

  17. JTMinIA says:

    You want to get KO to open his mind up and maybe even have Glenn on the show?

    Convince Rachel Maddow and then ask her to talk to him.

  18. sailmaker says:

    Slightly OT – and just nailing this to the board because I can’t think of anything else to do: I want to amend Article II, Section 2, Clause 1

    “The President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

    to read “In cases that involve the executive branch, pardons may not be given until 4 years after the alleged offender has left his office.”

    • PJEvans says:

      Maybe better if it’s less specific, expanded to cover Congress, the judiciary, and the barnacle branch. Because otherwise, they’ll interpret it to allow immediate pardons of everyone in government but the pres.

      I still think we need an amendment clearly laying out the position of the barnacle branch.

  19. Diane says:

    Olbermann is floating a secret plan similar to Nixon’s secret plan to get us out of Nam – he has become a joke.

  20. wavpeac says:

    His obviously emotional and sexist comments against Hillary were enough to keep me from watching his show. According to him, Hillary was something near the anti-christ and my take was and is now that there probably isn’t much light between Obama or Hillary. I felt that she had more connections with high powered people in washington and my selfish interest was domestic violence funding which she and her husband have proven to champion in past bills and legislation.

    Keith falls into that category of people who naively saw Obama as a cure to the ills of the current structure. He’s not. He’s a politician and in that sense his ties to Rezko, despite the fact that he wasn’t found to do anything “evil” were proof to me that he is a politician who has played this field and learned well how to do it.

    He’s going to be doing a “special commment” on Obama someday as the structure of politics in america eats him alive and turns him into a replica of the Clintons.

  21. Mary says:

    I agree with all the conclusions, but I’m going to play devil’s (angel’s?) advocate on some of the points.

    Before that, though, what is referenced in 5 as “entrapment by estoppel” I have never heard referenced that way either, but estoppel in almost a res judicata sense will be a big issue. Gov has intervened in the civil action and has pretty much taken the position there that the telecoms acted in good faith, which does destroy criminal mens rea. Having taken that position in the civil suit, I just don’t see any way Gov isn’t estopped in any criminal action from arguing to the contrary.

    On the devil’s advocate front, though, for “what crimes” I’d toss this stuff in the mix. 1) I can think of a whole host of things that undercut any good faith/reasonable reliance issues and pull criminal intent back into play. Walker’s opinion pretty much says no reasonable person would have thought the dragnet was legal. And backtracking to something that I guess I beat to death, Lamberth was briefed on the program early on and early on told DOJ that he thought it was unconstitutional and as a result was barring it from his court. His and Kollar-Kotelly’s subsequent rulings barring the programs must have had some whallop behind them bc I can’t think of any other explanation for Thompson, as Licthblau writes, to have quit signing FISA applications unless he was worried that some of those applications violated the Chief Judge’s exclusion orders and he wasn’t sure which ones, so he opted out altogether.

    Whichever or whatever, I think that if the telecoms were at all aware of Lamberth’s ruling, that completely kills a good faith/reasonable reliance defense. If they did NOT know of the ruling – that is something prettty darn major vis a vis the people at DOJ who covered that information up (and if they covered it up from Congress, that is pretty big too). Someone ought to be looking at frying if that’s the case and it also raises the issue of how do you ‘fix’ the FISA situation without providing a direct Judge/telecom Judge/Congress channel in the legislation?

    In any event, whether they knew or did not know of Lamberth and Kollar-Kotelly’s rulings at the time or not, they are pretty much charged with the knowledge once Leonig reported it.

    Another ruling they did know about definitely and one which everyone else knows about is Judge Diggs-Taylor’s ruling. Yes, I know that some have issues with her rulings on certain fronts (I don’t so much really – given the context I think they did what they should and could) and I know that her standing ruling was overruled, but she reviewed the program on the merits and ruled at least a part of it to be unconstitutional. With a District Court ruling to that effect, I think that participation in the program from the announcement of that ruling through the transfer of the program to the FISA court is a period for which no good faith could be claimed if the program continued during that period. Couple that with Walker’s statements and I think almost any jury or judge would find some time frame, whether it starts when Lamberth’s ruling was communicated to them, when Kollar-Kotelly’s ruling was communicated to them, when those those rulings were reported, when Judge Taylor ruled, when Judge Walker opined, or when there is some cumulative combination of the foregoing, when good faith withers and dies. Add on the notice issue when the telecoms were suddenly presented with something different after the hospital showdown – they would have had a duty of inquiry and the inquiry results should have impacted good faith defenses. Add on whatever else discovery might yield on in house memos, discussions by and between the telecoms and their counsels, and I really don’t believe that any kind of good faith really survives any kind of examination whatsoever. IIRC, even a befuddled looking DiFi, after being one of ‘the chosen’ to be briefed in on the program, coming back in a hearing and with a confused look saying that she didn’t really understand how the program could be legal.

    OTOH, even knowing criminal commissions are hard to address when the Dept of Justice is binding the US gov to being estopped on the issue of good faith, aren’t they?

    But that does leave another area – that of state law privacy violations. There is a supremacy issue, but when the federal front issue is not that the law was complied with, but rather that there has been a joint DOJ/telecom crimnal endeavor that has resulted in a cookedbooks defense, I think that a state AG with a will might make some waves.

    But basically I absolutely agree that Congress is giving away the criminal recourse here and they are doing that deliberately. I’ll tell you what else I think, although no one’s asking. IMO the bizarre court kabuki isn’t for the US. Congress could generate the US result just as easily with legislation that doesn’t require that Kabuki. IMO the court aspect is to somehow try to provide telecoms some insulation from foreign investigation and response. I think that’s where the weird “adminsitrative warrant that somehow is taking place in a court context but without court involvement or power” approach comes in. I can’t find it now with a google (I linked it here once upon a time too, but I don’t know how to do site searches and I probably have to many SWIFT references to narrow things if I did), but as I recall, the European privacy court ruling on SWIFT (which may or may not apply to wiretaps and surveillance issues) made it clear that solely administrative warrants that did not have court involvement were on their face violations of the European statutes.

    All fwiw and not that it matters in the end, bc I completely agree that, if the legislation stands, Congress has abrogated any criminal pursuit and that DOJ might have done that via estoppel even without Congressional action.

    But boy – I’d sure like to know WHO knew about the FISC Judge’s positions and whether or not they told Congress or the telecoms or the President or the AG or other AG or other other AG or DAG or other DAG or … BC I think you could have some really prime obstruction there and conspiracy to cover up the obstruction too. And of course Congress is completely negligent to not involve the third branch in the form of the two Chief Judges for some behind the doors input.

    [ps – for bmaz for the curiosity file – having practiced in VA some, way back when I was there Virginia, which still had Equity Courts for that matter, did still have some non-statutor, common law crime.]

  22. Mary says:

    BTW – I really like Keith’s show and he’s not a lawyer and deals with a lot of different things everyday and doesn’ have hours to spend getting briefed in, so I don’t think that it is a biggie that he may have misunderstood the issue or Dean’s statements.

    I have to look back at things like the response of some Law Profs to Judge Taylor’s ruling – some who got pieces in major national papers with their drivel – that showed they had no understanding whatsoever of the Motion to Dismiss process. So I cut Olberman slack.

  23. techmom says:

    I think the telco’s already have no worries about being prosecuted and that the lawsuits will be dismissed.
    I do want to make sure that they will testify to Congressional Committees and grand juries as potential crimes by the administration are investigated.

    I know that having immunity lessens the number of avenues for discovery but is it not also true that they would need to testify and not take the 5th to uncover the facts of what was actually done?

      • techmom says:

        Is that because testimonial immunity would come from criminal immunity? Or is it that this is not ‘immunity’ per se but law that basically says whatever happened was legal because the Pres said so?

        And if so, does that mean it can be undone by a future Congress. I mean since it is not really ‘immunity’ but more of an instant alibi/defense.

        Of course the clock is ticking too on statutes of limitations. If they run out the clock long enough it is all moot.

        Except for civil rights abuses there should be no limitations, which is why they can still prosecute KKK on those grounds.

    • Leen says:

      Bmaz and others have repeated that the telecoms are all ready protected. This “retroactive immunity” is not about them.

  24. bmaz says:

    As applied to the dismissal of the civil suits currently pending, “immunity” is more of a phrasing term we have applied to the debate than a word used in a technical legal sense you are thinking in relation to witness testimony. Here, it is indeed more “law that basically says whatever happened was legal because the Pres said so”. It is theoretically possible for it to be rolled back by a future Congress, but the odds of that are literally about zero, and I believe that the telcos could argue against that by making out arguments that they relied to their detriment on the initial dismissal of the suits (retroactive immunity grant) and are therefore entitled to that benefit. The bottom line is that this is toothpaste that won’t be going back in the tube.

    You have to look at civil and criminal separately on limitations. Civil here is two years; criminal five years. There is a long history in the law on finite limitations on actions; generally they are good, necessary and proper things to effect fair application of laws and due process.

  25. klynn says:

    Thanks for this post bmaz. Excellent.

    Even though this is from the earlier rounds on FISA is still has great content and is from the American Bar Association Membership:

    http://www.informationclearing…..e12294.htm

    And from the city most impacted by 9-11, the NY City Bar produced this letter juat a few weeks ago (second download under What’s New):

    http://www.nycbar.org/index.htm

    The letter is supported by its’ 22,000 members.

    bmaz, LHP are you able to get a letter supported by a number of our country’s lawyers into the hands of Obama and KO addressing what you state here bmaz as well as why “no” to immunity etc..?

  26. klynn says:

    bmaz thought you might like to read this blog from friends up north…

    http://wiselaw.blogspot.com/20…..a-and.html

    … no good comes from lending uncritical support to a political leader, or cheering them on when they do bad and destructive things, or using twisted rationalizations to justify their full-scale assault on your core political values. The overriding lesson of the last seven years is that political figures, more than they need anything else, need checks and limits. That is just as important to keep in mind — probably more so — when you love or revere a political leader as it is when you detest one.

  27. wigwam says:

    OT but related: I’ve posted a Dkos diary about this conversation between Olbermann/Dean conversation and three other typical cases where politicians and pundits have gone have said outrageously crazy things when talking about FISA. I don’t know if this is deliberate shuck-and-jive or repitition of right-wing talking points or what. It’s sort of a FISA-insanity syndrome.

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