Democrats, Obama roll over: FISA bill passed by Senate

[Master of Ossus]

These are giant telecoms with armies of lawyers and very deep pockets we're talking about. There's no reason they couldn't have challenged the orders in court if they were at all concerned with maintaining some form of ethical integrity.

Except that doing so costs money and pointlessly involves them in litigation they can costlessly avoid. Just because you're a big company with in-house counsel doesn't mean that it costs you nothing to go through litigation. Moreover, it's not the telecommunication companies' job to litigate on behalf of its customers, and I challenge you to find a company that would refuse a government order just for the hell of it. If anything, the fact that they're large corporations means that they have more to lose through litigation than "little guy" companies that have little invested capital and do not interact with the federal government on a regular basis.

[Surlethe]

One way to teach the phone companies a lesson is a boycott. Qwest was the only company that didn't comply with the illegal wiretaps, so why not take business to them and tell the other companies to drop dead?

What, exactly, do you think that the telecommunications companies should have done? Violated instructions from the federal government?

Did the federal government pass a law that ordered them to wiretap? If not, I don't see what legal basis it had to order the telecoms to comply with its orders.

[Glocksman]

According to this site, that's simply not true.

Linky

Argument 2

Legality aside, the activity was conducted at the behest of US President and the program was deemed legal by the US Attorney General. They acted in good faith and were morally obligated to comply with the requests. If laws were broken, it is the fault of the administration, not the companies who complied out of patriotism. Telecom executives and lawyers are not experts in this complicated area of Constitutional law.
Counterarguments

1. "Good faith" violations are protected by existing FISA law, therefore new legislation specifically immunizing Telecoms is not necessary
"(d) Defense.— A good faith reliance on—
(1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a statutory authorization;
(2) a request of an investigative or law enforcement officer under section 2518 (7) of this title; or
(3) a good faith determination that section 2511 (3) or 2511 (2)(i) of this title permitted the conduct complained of;
is a complete defense against any civil or criminal action brought under this chapter or any other law."
([WWW]18 U.S.C. 2520 part (d))

2. This is not a question of Constitutional law, but rather of Federal law. FISA was written and passed by the U.S. Congress explicitly for the purpose of providing rules to which the government and Telecommunications companies must adhere when conducting surveillance activities. The law is also clear. As Cindy Cohn of the Electronic Frontier Foundation, the lead counsel in the pending litigation against AT&T, says:

"Remember, these phone companies are very sophisticated about these FISA laws and the other laws that explain how and when they can cooperate with law enforcement. These aren't some rogues. This isn't Joe's Phone Company. They are very sophisticated and know the law better than almost everyone...But even if they didn't, I don't think it takes a lot of thought to wonder: "huh, the FISA law says that the exclusive means by which the Government can get information is either by a warrant or a short-term certification from the Attorney General in an emergency situation. Huh - do either of these two things justify ongoing wholesale surveillance of all of our customers for five years and counting?"

3. At least one telecom had the ability to understand the law. Qwest CEO, Joseph Nacchio, issued the following statement: ([WWW]Case 3:06-cv-00672-VRW Document 308 Filed 07/20/2006:
"In the Fall of 2001 * * * while Mr Nacchio was Chairman and CEO of Qwest and was serving pursuant to the President’s appointment as the Chairman of the National Security Telecommunications Advisory Committee, Qwest was approached to permit the Government access to the private telephone records of Qwest customers. Mr Nacchio made inquiry as to whether a warrant or other legal process had been secured in support of that request. When he learned that no such authority had been granted and that there was a disinclination on the part of the authorities to use any legal process, including the Special Court which had been established to handle such matters, Mr Nacchio concluded that these requests violated the privacy requirements of the Telecommications [sic] Act. Accordingly, Mr Nacchio issued instructions to refuse to comply with these requests. These requests continued throughout Mr Nacchio’s tenure and until his departure in June of 2002."
Argument 3

IOW, this is more about protecting GWB and his accomplices in both parties than it is about protecting telecos who in good faith obeyed the 'requests' from the government.

[Gil Hamilton]

Except that doing so costs money and pointlessly involves them in litigation they can costlessly avoid. Just because you're a big company with in-house counsel doesn't mean that it costs you nothing to go through litigation. Moreover, it's not the telecommunication companies' job to litigate on behalf of its customers, and I challenge you to find a company that would refuse a government order just for the hell of it. If anything, the fact that they're large corporations means that they have more to lose through litigation than "little guy" companies that have little invested capital and do not interact with the federal government on a regular basis.

Except it's not as you so casually put it, "just for the hell of it". It's refusing a government order to help them illegally spy on the American people. That's a world of difference that "just for the hell of it".

When someone asks you do something illegal or something potentially illegal with unsettling ramifications, you should refuse utterly, do you not?

[Master of Ossus]

When someone asks you do something illegal or something potentially illegal with unsettling ramifications, you should refuse utterly, do you not?

I think that if the President, AG, and both houses of Congress repeatedly tell me that something is legal and necessary for national defense I'm going to do it. You would refuse, at that point, based on your own interpretations of a complicated legal issue?

[Master of Ossus]

Did the federal government pass a law that ordered them to wiretap? If not, I don't see what legal basis it had to order the telecoms to comply with its orders.

1. Protect America Act.
2. Protect America Act (extension)
3. FISA Amendment Act.

All of those authorize the wiretapping activities and the telecommunication companies' actions. So, yeah, the federal government passed several laws ordering them to wiretap.

[Gil Hamilton]

I think that if the President, AG, and both houses of Congress repeatedly tell me that something is legal and necessary for national defense I'm going to do it. You would refuse, at that point, based on your own interpretations of a complicated legal issue?

Absolutely, I would refuse. If it is necessary and legal, they can make it clear cut in legislation first before doing asking a single thing of me. Or they can get an actual warrant and do that whole "due process" thing that the Constitution went on about.

Neither the President, the Attorney General or any member or body in Congress is above the law. They can go on to they are blue in the face, they still must be refused if they ask you something illegal.

Or are you publicly stating that you think it is alright and correct to do something illegal or potentially illegal with serious ramifications just because the government tells you to?

[Glocksman]

Did the federal government pass a law that ordered them to wiretap? If not, I don't see what legal basis it had to order the telecoms to comply with its orders.

1. Protect America Act.
2. Protect America Act (extension)
3. FISA Amendment Act.

All of those authorize the wiretapping activities and the telecommunication companies' actions. So, yeah, the federal government passed several laws ordering them to wiretap.

But weren't those laws passed after the administration initially 'requested the cooperation' of the telecos?

[Alyrium Denryle]

So, I take it that you no longer favor any aspect of Obama's platform over that of McCain?

His platform? Oh there certainly is. But if he is willing to back down on the 4th amendment, I cant trust anything that comes out of his mouth.

Obama is a politician, and as unpleasant as the prospect may seem, presidential candidates in the United States have to appeal to the center to get elected.

He could have done that any number of ways, without punching the 4th amendment and the rule of law in the balls. It is one thing to SAY something to get elected during the general election. It is another to vote for cloture and then vote on a motion that is blatantly unconstitutional that the center indeed does not support.

This compromise (and it is plainly a compromise, not an out and out betray of principles) only demonstrates that Obama is familiar with the political realities of our time.

Where the fuck is the compromise? The Conservatives got everything they wanted, they got telecom immunity, they got their unconstitutional warrantless wiretaps, they got everything. What did they actually concede for this so-called compromise?

I still support almost everything that Obama has done or promised to do on the campaign trail, and I still have faith that he will enact positive change in Washington when he is elected.

Does this include scat porn involving our bill of rights?

As such, even if it was morally reprehensible and even illegal for the government to ask the telecoms in question for their records, it was not the place of those companies to out and out refuse the government’s request.

Yes. Yes it is. I suppose if the US government requests all your financial documents without a warrant with the intent to potentially bring charges against you, the banks are obligated to provide? How about medical records? What books you read?

No. THis shit is illegal. There is no "national crisis" short of foreign armies on our soil that justifies is. And the telecoms knew it. They consulted with lawyers before they made the decision to comply. Those lawyers undoubtedly told them that there were privacy laws in place specifically to avoid that intrusion. They knowingly participated in a criminal action perpetrated by the executive branch. A felony offense. They should be nailed to the wall. But instead, they are given a pass. Fuck that.

I have no desire to see companies refusing to assist the government in genuine times of national emergency and need out of fear of legal culpability

The bill of rights does not evaporate when we are threatened.

All the feds had to do was get warrants for specific individuals they wanted to target, with reasonable suspicion of terrorist activity. Hell, they even have a secret fucking court for the purpose. But no. They couldnt even bother with that. Enough is enough. Our civil liberties have been pissed on for the last 8 years, to the point that the nitrogen compounds have corroded the paper the bill of rights is printed on. And now, not only are we giving the federal government unprecedented surveillance power, the power to screen our every phone call or email through word filters and draw up watch lists, but we are giving the people that colluded with them when it WAS illegal (and constitutionally it still is) immunity. No. This has to stop. Otherwise we will edge closer and closer to fascism.

Oh, wait... we already are.

[Master of Ossus]

I think that if the President, AG, and both houses of Congress repeatedly tell me that something is legal and necessary for national defense I'm going to do it. You would refuse, at that point, based on your own interpretations of a complicated legal issue?

Absolutely, I would refuse. If it is necessary and legal, they can make it clear cut in legislation first before doing asking a single thing of me. Or they can get an actual warrant and do that whole "due process" thing that the Constitution went on about.

Neither the President, the Attorney General or any member or body in Congress is above the law. They can go on to they are blue in the face, they still must be refused if they ask you something illegal.

Please. Congress passed legislation that specifically authorized these activities, and the President signed them into law. The Attorney General then agreed with the laws. Congress itself isn't above the law, but the laws that it creates ARE the law in this country. If I'm a corporation, I have absolutely no desire to get into a constitutional dogfight with the US government that can be easily avoided.

Or are you publicly stating that you think it is alright and correct to do something illegal or potentially illegal with serious ramifications just because the government tells you to?

I don't think it's "alright and correct," but I can certainly see why someone would want to comply with orders from Congress, the President, and the attorney general. As for being "illegal or potentially illegal," Congress creates the laws and the President enforces them. If both of those groups repeatedly tell me that something is legal, I don't really see a point in fighting them just for the hell of it.

Moreover, I don't really see what law the telecos allegedly violated.

[Zablorg]

Oh, you just know Mallard Fillmore is going to be stomping on top of this for weeks...

[Elfdart]

What, exactly, do you think that the telecommunications companies should have done? Violated instructions from the federal government?

Yep.

[Glocksman]

Oh, you just know Mallard Fillmore is going to be stomping on top of this for weeks...

...and in the wrong direction, most likely.

MF is great when the artist is on target, just like Day By Day is.
When they're 'off game' is when MF and DbD are embarrassing to read.

[Elfdart]

By the way, Gordon Liddy, E. Howard Hunt and Nixon's other thugs were acting on instructions from the White House when they carried out illegal surveillance, so why not give them retroactive immunity, too?

[Master of Ossus]

By the way, Gordon Liddy, E. Howard Hunt and Nixon's other thugs were acting on instructions from the White House when they carried out illegal surveillance, so why not give them retroactive immunity, too?

Uh... because Nixon was not acting in his capacity as President when he ordered them to break into Watergate?

[Glocksman]

Well, Jimmy Carter commuted Gordon Liddy's sentence.
I'm sure you'll hear that comparison made, but it doesn't hold water as Liddy wasn't pardoned or excused of his crimes by Carter.
Whereas the FISA immunity bill does excuse the telcos liability WRT illegally cooperating with the government WRT violating the bill of rights.

Make the telco CEO's serve the same sentence Liddy did before Carter's commutation and I'd probably support the bill as passed.

[Surlethe]

Did the federal government pass a law that ordered them to wiretap? If not, I don't see what legal basis it had to order the telecoms to comply with its orders.

1. Protect America Act.
2. Protect America Act (extension)
3. FISA Amendment Act.

All of those authorize the wiretapping activities and the telecommunication companies' actions. So, yeah, the federal government passed several laws ordering them to wiretap.

Those were passed after 2006; the government asked the companies to wiretap in 2001 right after 9/11.

[Gil Hamilton]

Please. Congress passed legislation that specifically authorized these activities, and the President signed them into law. The Attorney General then agreed with the laws. Congress itself isn't above the law, but the laws that it creates ARE the law in this country. If I'm a corporation, I have absolutely no desire to get into a constitutional dogfight with the US government that can be easily avoided.

None of the legislation you cited existed when the illegal wiretapping happened. The first of them came in 2007 and existed at all because it was completely dubious the 1978 FISA act.

I don't think it's "alright and correct," but I can certainly see why someone would want to comply with orders from Congress, the President, and the attorney general. As for being "illegal or potentially illegal," Congress creates the laws and the President enforces them. If both of those groups repeatedly tell me that something is legal, I don't really see a point in fighting them just for the hell of it.

There's that "just for the hell of it". It's not just for the hell of it, it's spying on the American people without a warrant. If you don't think it alright and correct, you must think it is wrong. If it is wrong, then the telecoms should have refused until it was made clear or just simply refused. If doesn't matter if Bush delivered the order by way of the goddamn Metatron, if something is legally dubious as hell if not outright criminal and clearly wrong in any event, you must refuse. And you can't cite the laws you have been, because they didn't exist when all this went down.

[RedImperator]

By the way, Gordon Liddy, E. Howard Hunt and Nixon's other thugs were acting on instructions from the White House when they carried out illegal surveillance, so why not give them retroactive immunity, too?

Uh... didn't they get it when Ford pardoned them?

That would have been news to Liddy and Hunt.

[Glocksman]

By the way, Gordon Liddy, E. Howard Hunt and Nixon's other thugs were acting on instructions from the White House when they carried out illegal surveillance, so why not give them retroactive immunity, too?

Uh... didn't they get it when Ford pardoned them?

That would have been news to Liddy and Hunt.

Indeed.
I listen to Liddy's radio show somewhat and a big part of his schtick is that as a convicted felon, he cannot legally own any firearms under Federal law.
After he says that, he then goes on to say that his wife 'happens' to have a large gun collection.

[Master of Ossus]

Indeed.
I listen to Liddy's radio show somewhat and a big part of his schtick is that as a convicted felon, he cannot legally own any firearms under Federal law.
After he says that, he then goes on to say that his wife 'happens' to have a large gun collection.

Conceded, but in any case Nixon was not acting in his capacity as the President when he instructed them to break into Watergate.

[Master of Ossus]

None of the legislation you cited existed when the illegal wiretapping happened. The first of them came in 2007 and existed at all because it was completely dubious the 1978 FISA act.

I don't understand your last sentence, but if the executive branch of the US government orders someone to do something and their lawyers come back and give it the go-ahead, what do you expect them to do?

I don't think it's "alright and correct," but I can certainly see why someone would want to comply with orders from Congress, the President, and the attorney general. As for being "illegal or potentially illegal," Congress creates the laws and the President enforces them. If both of those groups repeatedly tell me that something is legal, I don't really see a point in fighting them just for the hell of it.

There's that "just for the hell of it". It's not just for the hell of it, it's spying on the American people without a warrant. If you don't think it alright and correct, you must think it is wrong.

First of all, the "alright and correct" applied to your hypothetical situation of the US government ordering someone to do something that was illegal.

If it is wrong, then the telecoms should have refused until it was made clear or just simply refused.

And you don't think that the AG's repeated statements on the matter clarified the issue at all?

If doesn't matter if Bush delivered the order by way of the goddamn Metatron, if something is legally dubious as hell if not outright criminal and clearly wrong in any event, you must refuse.

So you've now taken the position that "if something is legally dubious" I am obligated to refuse? Whose word can I accept on the matter, before you're satisfied? Am I obligated to appeal the case until the Supreme Court evaluates it?

And you can't cite the laws you have been, because they didn't exist when all this went down.

Yet the executive branch had made its findings clear, and Congress later passed legislation which clearly agrees with the executive branch's original interpretation of FISA. Sorry, but I'm not really seeing the opportunity for a corporation to refuse an order, here.

[The Duchess of Zeon]

I was the one who said it first: Obama is just a Machine Politician Democrat up to his eyeballs in connections with Daley. "Change", no, forget about it, rather, we haven't quite seen a President this thoroughly interconnected with such an Old School Party Machine ala Tammany Hall since, oh, Lyndon Johnson, on the democratic side, and Nixon on the Republican. You know, it's sort of interesting--LBJ was nearly as reviled as Bush is now, and he, too, was replaced by a person promising a secret plan to make the future better who was actually gesturing to an empty pocket.

The party designations are reversed this time, but how much else has changed? Probably very little.

[Glocksman]

He wasn't, but that really doesn't apply unless your position is that POTUS can issue illegal orders and immediately expect compliance no matter the actual wording of the law.

My position is that the telcos should have simply said 'meed existing FISA conditions and we'll comply' instead of saying 'Yes Sir, and may I have 20 more inches up my ass, Sir'.

After all, the Bill of Rights is a listing of rights. not a listing of wants.
If the Feds can infringe on the rights of one subset of Americans, then the precedent has been set where they can ignore my rights as an American citizen.

And to be brutal about it, I'm not about to sacrifice the Bill of Rights so that a bunch of fucking pussies can feel safe.

[Feil]

Yes, there is.
HRC can afford to be against a bill that the Democratic leadership is for because she's not the Presidential candidate for the Democrats.
Obama is and simply doesn't have the political capital yet to force Rockefeller and the rest of the asshole to STFU and get in line.

I can't prove it, but given her past voting history I'd say that if she was the Dem candidate, she not only would have voted for immunity, she'd be championing it.

So what? A vote against a basic constitutional right is a vote against a basic constitutional right, and whether you do vote against it for principles or for expedience, you still voted against it. Ever since Hillary backed down, Obama has been pissing on everything that won him the nomination. I'm still going to vote him, but only because any democratic candidate would be better than John "I love waterboarding" McCain.