pageok
pageok
pageok
FISA Deal Reached:
It took forever, but it finally happened: A deal on foreign intelligence monitoring. You generally can't rely on the press to report accurately on this sort of super-detailed legislation, but the Washington Post is reporting that the key moves of the new legislation are these:
Under the surveillance agreement, which is expected to be approved today by the House and next week by the Senate, telecoms could have privacy lawsuits thrown out if they show a federal judge that they received written assurance from the Bush administration that the spying was legal. . . . The legislation also would require court approval of procedures for intercepting telephone calls and e-mails that pass through U.S.-based servers -- another step that the White House and GOP lawmakers previously resisted.
  That sounds pretty sensible, although I'll need to read the language first to get a sense of what really happened. Stay tuned.
jack brown:
I know you guys are all in favor of these new wiretapping laws and their ilk (and I am decidedly not!), but I am curious if you, Orin, or someone else has an insight on the historical use of sunset clauses: this particular law will, if approved, sunset in 2012.

The only rationale for a sunset clause in a law like this one seems to be that this a kind of state-of-emergency law. In other words, this is a law pertinent to the war on terror, but it does and permits things which we normally wouldn't permit in this country--un-American things like warrantless wiretaps, etc.

That seems to be an interesting and rather important statement to be making, doesn't it? Or am I wrong and are sunset clauses on police powers-type laws common outside states of emergency?
6.20.2008 1:51am
Ramza:

UPDATE II: The full text of this bill is where it belongs: on Steny Hoyer's website, here (.pdf).

Perhaps the most repellent part of this bill (though that's obviously a close competition) is 802(c) of the telecom amnesty section. That says that the Attorney General can declare that the documents he submits to the court in order to get these lawsuits dismissed are secret, and once he declares that, then: (a) the plaintiffs and their lawyers won't ever see the documents and (b) the court is barred from referencing them in any way when it dismisses the lawsuit. All the court can do is issue an order saying that the lawsuits are dismissed, but it is barred from saying why they're being dismissed or what the basis is for the dismissal.

So basically, one day in the near future, we're all going to learn that one of our federal courts dismissed all of the lawsuits against the telecoms. But we're never going to be able to know why the lawsuits were dismissed or what documents were given by the Government to force the court to dismiss the lawsuits. Not only won't we, the public, know that, neither will the plaintiffs' lawyers. Nobody will know except the Judge and the Government because it will all be shrouded in compelled secrecy, and the Judge will be barred by this law from describing or even referencing the grounds for dismissal in any way. Freedom is on the march.

Salon Link

Passing this build (as a congressman) in my mind will be an evil act. It doesn't matter, go ahead and break the law, here are your super secret documents saying you didn't break the law, but since they have the super secret seal nobody can see them. Anytime I waive my magic wand with the spirit of "bipartisanship" I can make something a super secret seal.
6.20.2008 2:04am
Mr. X (www):
So this law would grant immunity for breaking a clearly written Federal statute to any company who can show the court a letter from the President saying it was okay?

I'm not sure if I'm more disturbed by the erosion of privacy protections or the separation of powers problems this raises.
6.20.2008 2:29am
George Weiss (mail) (www):


I'm not sure if I'm more disturbed by the erosion of privacy protections or the separation of powers problems this raises.


hmm congress passes a law saying something is illegal-then after seeing its effects passing a law modifying it. gee-what a crazy violation of separation of powers. /sarcasm
6.20.2008 4:37am
Anon21:
hmm congress passes a law saying something is illegal-then after seeing its effects passing a law modifying it. gee-what a crazy violation of separation of powers. /sarcasm

You left out the important part in the middle where the executive branch breaks the law because it decides, at its own discretion, that the law isn't working. It also decides not to bring the problem to Congress pre-emptively; breaking the law is much more expedient. And then, when it looks like someone may actually have to bear the ordinary consequences of breaking the law, the executive goes to Congress and gets lawmakers to agree that law-breaking is ok so long as the executive branch says it is.

Just because Congress is falling all over itself in its haste to abandon its authority to the President doesn't mean separation of powers concerns aren't relevant. The non-delegation doctrine and cases like Clinton v. New York stand for the principle that legislators aren't allowed to surrender their constitutional prerogatives to the President simply because it's politically expedient to do so.
6.20.2008 5:44am
George Weiss (mail) (www):

the executive goes to Congress and gets lawmakers to agree that law-breaking is ok so long as the executive branch says it is.


no-lawbreaking is ok when congress says it is.


The non-delegation doctrine and cases like Clinton v. New York stand for the principle that legislators aren't allowed to surrender their constitutional prerogatives to the President simply because it's politically expedient to do so.


except that the party benefiting from the legislation is not the president-its the phone companies-totally non political entities. this legislation does nothing to help the government gain its immunity-they are already immune one way or another.

if congress decided to give crack dealers lighter sentences and apply it retroactively-would you also say that was an unconstitutional delegation to the judicial branch?
6.20.2008 6:03am
Kenneth Almquist (mail):
[T]he party benefiting from the legislation is not the president-its the phone companies-totally non political entities. this legislation does nothing to help the government gain its immunity-they are already immune one way or another.

The Bush Administration and the telephone companies worked together to violate the law. To say that the legislation provides no benefit to the president is to say that the president has no reason to be loyal to his partners in crime. The Administration's support for telecom immunity suggests that Bush doesn't feel that way.

if congress decided to give crack dealers lighter sentences and apply it retroactively-would you also say that was an unconstitutional delegation to the judicial branch?

That wouldn't be an unconsitutional delegation of authority because Congress it wouldn't be a case of delegating authority; Congress would still be setting the sentencing rules.

That said, the possibly unconstitutional delegation of authority strikes me as a side issue. The big issue is whether those with sufficient political clout can ignore the law. We are supposed to be a nation of laws, and the telecom immunity provisions move us farther away from that ideal.
6.20.2008 7:06am
George Weiss (mail) (www):

The Bush Administration and the telephone companies worked together to violate the law. To say that the legislation provides no benefit to the president is to say that the president has no reason to be loyal to his partners in crime. The Administration's support for telecom immunity suggests that Bush doesn't feel that way.
That said, the possibly unconstitutional delegation of authority strikes me as a side issue.


the new law does not delegate any powers to the executive. it gives immunity to those (other than the president) that violated the law.

it certainly supports an illegal decision by the executive in the past-however it does not give the executive power to make decisions that it should be making.

thats why its not a separation of powers issue.


That said, the possibly unconstitutional delegation of authority strikes me as a side issue. The big issue is whether those with sufficient political clout can ignore the law. We are supposed to be a nation of laws, and the telecom immunity provisions move us farther away from that ideal.


of course they can. congress can give immunity to virtually anyone who it wants for anything it wants-provided it doesn't violate the constitution (notably equal protection) in doing so.

thats what political decisions do. and political decisions are made in accordance with those who have political clout.

i agree that favoring those with lots of influence over those with little is an issue-but its a political issue-not a legal one.
6.20.2008 7:52am
rechtsanwalt schweiz (mail) (www):
How about who is the criminal? Some dudes who were salesman for a hedge fund or prosecutors probably lying about crimes. These are the same prosecutors who put Arthur Andersen out of business and eliminated 100k jobs in the process for something the SCT said was not even a crime. Oh yeah, these are the same prosecutors who obtained 13 Enron convictions via trial yet 11 were overturned on appeal not withstanding all the lives destroyed irreparably, one is being appealed for many reasons including withholding exculpatory evidence under Brady and the other conviction was vacated because Kenny Boy committed suicide to avoid further embarrassment or death in prison. Very nice, what a great legal system which is founded upon the principles of paid criminal witnesses telling the truth for the first time in their lives. The law of man is not above the law of God and surely God will judge these prosecutors accordingly.
6.20.2008 8:07am
Tyrant King Porn Dragon (mail):
"That seems to be an interesting and rather important statement to be making, doesn't it? Or am I wrong and are sunset clauses on police powers-type laws common outside states of emergency?"

Sunset clauses are common on any law that gives those advocating it a political advantage. That way, they can revisit it (and use it to attack their political enemies) year after year. See, for example, the sunsets on the Bush tax cuts.

"So this law would grant immunity for breaking a clearly written Federal statute to any company who can show the court a letter from the President saying it was okay? "

To be fair, 'what we're asking you to do is legal; do it or we'll send you to federal prison' is an extremely persuasive combination. I doubt telecom execs are up-to-date on the minutiae of Presidential authority; this bill (for all its loathsomeness - see Ramza, above) puts the blame squarely where it belongs, on the Bush Administration.
6.20.2008 8:21am
Ramza:

To be fair, 'what we're asking you to do is legal; do it or we'll send you to federal prison' is an extremely persuasive combination. I doubt telecom execs are up-to-date on the minutiae of Presidential authority; this bill (for all its loathsomeness - see Ramza, above) puts the blame squarely where it belongs, on the Bush Administration.

If you are so confident of no wrongdoing, then why make everything that ever happen a state secret? Why the cover up?
6.20.2008 9:01am
midlantan (mail):
Orin - I'm curious why you would write that this "deal" sounds "sensible" to you. For one, it doesn't seem like a "deal." Rather, it seems like virtually complete capitulation by those who opposed broad and unlimited telecom immunity. Another problem seems to be that the "deal" requires only the thinnest reed of evidence suggesting that the telecoms thought they were complying with a lawful order, or that their actions were authorized. Courts would be required to dismiss (i.e., there could be no finding of liability, not just a waiver of penalties or damages if liability were found), based on a representation by the current Attorney General (who obviously was not at DOJ during the relevant period) that telecom requests were determined to be lawful. It's not clear that the AG would even have to certify that such representations were made to the telecoms, much less what those actual representations might have been (so that a court could assess whether it was reasonable for the telecoms to rely on them). This sounds like immunity, pure and simple, based on secret, hearsay evidence (although it might fall under some FRE exception, it also may be lacking in credibility in other respects, but we'll never know) that is of only limited relevance. How is that "sensible"?
6.20.2008 9:20am
Bob from Ohio (mail):
I have always found it funny that the left got so upset that the President went around FISA.

FISA = a secret court hears secret ex parte warrant applications, with said secret court, according to reports, approving 99+% of applications. On the rare denial, the government either 1. resubmits with minor tweaks or 2. files a secret ex parte appeal to a secret review court.

What stops the government from making up all the "evidence" it presents to the secret court? The sources are classified. Since these are intelligence gathering, not law enforcement, intercepts, there will seldom, if ever, be a later case that lets the warrant be challenged. So, the court can certainly never know if anything it is given was accurate.

The FISA check on the executive is microscopic.
6.20.2008 9:56am
cboldt (mail):
Congress - 1978: We have these limits on the government, and if the government snoops past "here" (draws a line in the sand), well, by golly, there are criminal penalties and a right to sue for damages.
.
Government gets caught in 2005. Congress erases the line in the sand
.
Congress - 2007: We have these limits on the government, and if the government snoops past "here" (draws a new line in the sand), well, by golly, there are criminal penalties and a right to sue for damages.
.
Fool me once, shame on me.
.
Congress should just repeal the FISA safe harbor, and let the government snoop as it sees fit. I, for one, have no faith in legislated limits on government snooping.
.
Notice, that is on government snooping. I believe legislated limits on private snooping actually have teeth. But there is no way a government snooper, acting on purported "foreign intelligence" or "state security" grounds, can be called out for snooping wherever and whenever the mood strikes.
6.20.2008 10:45am
cboldt (mail):
-- You generally can't rely on the press to report accurately on this sort of super-detailed legislation --
.
I generally don't rely on the press to report accurately. Period.
.
YMMV
6.20.2008 10:47am
snoey (mail):
The FISA check on the executive is microscopic.

Agreed. So why is it surprising that people are upset with an administration that found that to be too restrictive?
6.20.2008 11:18am
Apodaca:
GW:
the phone companies-totally non political entities
*weeps with laughter*
6.20.2008 12:13pm
Oren:
I have always found it funny that the left got so upset that the President went around FISA.
Because the precedent is a veritable loaded gun left for some future administration that wants to claim, counter to the very structure of the Constitution, that the President can act in secret defiance of Congress when he decides that national security demands it. Then when he is caught red-handed, he demands the law change AND that his previous illegality be excused.

This bill adds considerable insult to the Constitutional injury of the TSP (a program that, had it been brought to Congress in a timely fashion, I would no doubt have supported).
6.20.2008 12:16pm
Bob from Ohio (mail):

So why is it surprising that people are upset with an administration that found that to be too restrictive?


Because they think FISA protects their civil liberties when it does no such thing.
6.20.2008 12:18pm
Patrick Meighan (mail):
"I'm not here to say that the government is always right, but when the government tells you to do something, I'm sure you would all agree that I think you all recognize that is something you need to do." --Sen. Kit Bond (R-MO)

Got that everyone? Any questions? When the government tells you to do something, no matter how illegal, you must obey. 'Cause it's the government, and you must obey it. 'Cause it's the government. Which you must obey.

Patrick Meighan
Culver City, CA
6.20.2008 12:49pm
Justin (mail):
Whether you agree that this is sensible depends on whether you agreed with the GOP or the Democrats in the first instance. The GOP, as a practical matter, gets everything they wanted if this deal passes. Since Orin's position was basically pro-Telecom immunity in the first place, it is of course going to be sensible, but those that opposed blanket Telecom immunity get nothing (as a practical matter) out of this deal.
6.20.2008 12:59pm
gab:
I'm ok with it as long as Orin thinks it's "pretty sensible.."
6.20.2008 1:00pm
Jiminy (mail):
It's not illegal if the President (and his appointees/ministers) does/do it.
6.20.2008 1:04pm
EH (mail):
Justin: You might be more correct if there wasn't opposition across the spectrum of U.S. political ideologies.
6.20.2008 1:32pm
yorick (mail):
I just hope you guys and Obama go to the next election with your anger at Bush for eavesdropping on border crossing calls! Obviously Democrat leaders in Congress weren't up for that particular losing battle before the electorate.
6.20.2008 1:37pm
darelf:

It's not illegal if the President (and his appointees/ministers) does/do it.


A) Mississippi v Johnson. The President is immune to judicial process.

B) Nixon v Fitzgerald. 'The President's absolute immunity extends to all acts within the "outer perimeter" of his duties of office.'

so... yes.
6.20.2008 1:42pm
CrazyTrain (mail):
I have always found it funny that the left got so upset that the President went around FISA.

FISA = a secret court hears secret ex parte warrant applications, with said secret court, according to reports, approving 99+% of applications. On the rare denial, the government either 1. resubmits with minor tweaks or 2. files a secret ex parte appeal to a secret review court.. . . .

The FISA check on the executive is microscopic.


Precisely. That's why many (not just the "left") were a little disturbed by why the President thought he didn't even need to comply with these "microscopic" check. Makes you think; doesn't it?
6.20.2008 1:43pm
Bob from Ohio (mail):

The GOP, as a practical matter, gets everything they wanted if this deal passes.


Yes, because intercepting terrorist calls is popular. There is an election coming that the Dems should win, they want to get on the popular side of this.

While the war in Iraq is unpopular, cutting of funding for our troops in Iraq and Afganistan is equally unpopular. That explains the Dem fold on the Iraq funding issue too.

No president (even with 25% approval ratings) ever loses on a national security issue. Obama, if elected, will benefit from this as well.
6.20.2008 1:44pm
CrazyTrain (mail):
Nixon v Fitzgerald. 'The President's absolute immunity extends to all acts within the "outer perimeter" of his duties of office.'

Immune from CIVIL suit under a Bivens cause of action. Big difference from immunity from criminal suit, immunity from impeachment (impossible), and a far cry from "it's not illegal if the President (and his appointees/ministers) does/do it" -- I know these "subtle" distinctions are tough for some, but this is pretty basic stuff.
6.20.2008 1:45pm
yorick (mail):
Here is my suggested bumper stickers for you guys to run on, instead of "Bush Knew!" you can run on "Bush Shouldn't Have Known!"
6.20.2008 1:47pm
cboldt (mail):
-- because intercepting terrorist calls is popular. --
.

And too, because in an argument framed as choosing between privacy and security, security wins. Meaning that interception of ALL calls is popular, if that's what it takes to weed out the terrorist ones.
6.20.2008 2:18pm
Mary Katherine Day-Petrano (mail):
I hope the new legislation also included some new security filter for the FISC, post-the Kozinski disabling breach of the Federal Courts' WebSENSE filter -- we would not want to discover in hindsight some hacker managed to hack into the FISC National Security records.

With at least one example of a Federal Judge (notwithstanding he is one everyone likes), botching up the security on his own personal server, God knows what sensitive information might be at risk in our Federal Courts system. Share a few P2P files with a law clerk, and woopsie ... the entire contents of the FISC Chief Judge's hard drive might end up ...

WHO KNOWS WHERE !!!

Didn't the People's Republic of China just get caught hacking into some Congressional computers a couple weeks ago?

BEFORE a deal is approved on new FISA legislation, WHY AREN'T WE TALKING ABOUT FORMER AOC DIRECTOR MECHAM'S LETTER WARNING US ABOUT THE LACK OF ADEQUATE COMPUTER SECURITY FIREWALLS IN OUR FEDERAL COURTS ALLOWING HACKERS ACCESS TO HACK INTO ANY FEDERAL COURT RECORD IN THE UNITED STATES WITH OPPORTUNITY TO OBSTRUCT PENDING CASES?

Again, we all know Judge Kozinski did not have the computer knowhow to breach an entire Nation's Federal Judiciary Court System's computer firewall; such could only have been done by a highly sophisticated computer programmer extraordinaire motivated by a financial interest in opening up the Federal Courts Systems' computers to lucrative outside security risks.

This is bigger than Watergate ...

and NO new FISA legislation should be signed into law until until this entire Federal Courts Computer System security break-in is flushed out.
6.20.2008 2:37pm
darelf:

Immune from CIVIL suit under a Bivens cause of action. Big difference from immunity from criminal suit, immunity from impeachment (impossible), and a far cry from "it's not illegal if the President (and his appointees/ministers) does/do it"


But the topic is not about impeachment. The topic, necessarily, is whether gathering intelligence in time of war falls within those bounds. This isn't a discussion about whether if the President uses an axe to murder his wife, whether he could be impeached, or under any other circumstances..... I know these subtle distinctions, blah blah blah

The point is there is long precedent for Presidential immunity in the exercise of his powers. I'm fairly certain that intelligence gathering falls under the executive. And that it extends even to his 'outer perimeter', meaning his officers.
6.20.2008 3:06pm
deClerk:
Here's teh roll call for the FISA Amendments Act of 2008.

Find out how your representative voted, and if you don't like it then you can let them know at the polls.
6.20.2008 3:16pm
Jiminy (mail):
At least the MA reps all voted Nay.
6.20.2008 3:34pm
Jiminy (mail):
Crazytrain, my point is shared by darelf - the Executive is "doing his job" and for that is about as immune as a person could be in this nation.
6.20.2008 3:36pm
Jason F:
So it looks like it took us about 35 years to go from "It's not illegal when the President does it" to "It's not illegal when the President tells you to do it."
6.20.2008 4:27pm
eddiehaskel (mail):
Can the true libertarians please answer the following:

Why should there have been amnesty?

Why are blanket mass tapping of US citizens telecommunications necessary?

Finally, how can the current compromise make government any less intrusive?
6.20.2008 5:37pm
cboldt (mail):
-- Why should there have been amnesty? --
.
Because, if the public learns the true extent (or limit) of secret snooping -- i.e., if the public knows the LEGAL POLICY relating to snooping -- then the bad guys will know it too. Therefore, we can't tell the public how much or how little we snoop. Some of the people in the public are terrorists.
.
-- Why are blanket mass tapping of US citizens telecommunications necessary? --
.
We don't do mass/blanket snooping of communications in order to detect terrorists before they can do harm. We use intuitive methods to determine which communications to intercept and retain, so that the only communications retained involve terrorist threats.
.
-- how can the current compromise make government any less intrusive? --
.
The new bill has unprecedented protection for privacy. It even protects the privacy of Americans abroad.
6.20.2008 6:08pm
cboldt (mail):
I omitted the disclaimer that I am not a true libertarian. I am a miniature Australian Shepherd.
6.20.2008 6:09pm
George Weiss (mail) (www):

Apodaca:
GW:

the phone companies-totally non political entities

*weeps with laughter*



like it or not they are non political under the law. sorry.
6.20.2008 6:27pm
Mary Katherine Day-Petrano (mail):
"I omitted the disclaimer that I am not a true libertarian. I am a miniature Australian Shepherd." --->

It has been implied before on this blog, that due to my *non-libertarian* streak, I should be in a certain dog-house. It has also been implied, that I might be 're-trainable."

I have decided I want to be a libertarian. It is no fun being cue-word slurred as a *do not feed the troll,* i.e., boycotted in the form of a segregation on this blog from the marketplace of ideas.

It is just, well ... I don't know what someone has to do be become a libertarian.

Maybe, since some here feel I am 're-trainable,' those advocates of such mentorship might wish to inform me what an autistic must do to become a libertarian.

I am open to blogger-suggestions of the steps I will need to take to become initiated into becoming a true libertarian so I can be integrated among my peers on this blog as a libertarian.

I am already registered as a Republican.
6.20.2008 11:08pm
cboldt (mail):
-- I am open to blogger-suggestions of the steps I will need to take to become initiated into becoming a true libertarian so I can be integrated among my peers on this blog as a libertarian. I am already registered as a Republican. --
.

You want to be "initiated" as a libertarian and you joined the republican party? Take it from a mini-Aussie, initiation is for chumps. Plus, Republicans HATE libertarians with a passion. There probably ought to be a law making libertarian hate into a hate crime, or at least a discrimination violation.
.

Wuff.
6.20.2008 11:31pm
Fub:
cboldt wrote at 6.20.2008 10:31pm:
There probably ought to be a law making libertarian hate into a hate crime, or at least a discrimination violation.
.

Wuff.
Before, or after, privatizing the sidewalks? What are the priorities here, anyhow?
6.21.2008 12:13am
cboldt (mail):
-- Before, or after, privatizing the sidewalks? What are the priorities here, anyhow? --
.
Sidewalks? I care not. Federal law mandating a voluntary pee-hydrant every 50 feet, to me maintained by non-tax fees imposed on the weathiest of the welfare recipents. That way mini-Aussies and libertarians can all meet their quotas.
6.21.2008 2:53am
Mary Katherine Day-Petrano (mail):
"That way mini-Aussies and libertarians can all meet their quotas." ---->

Quotas? I am working hard, working really hard to become a true libertarian, but ...

I read that libertarians hate affirmative action, quotas and stuff,

so what gives?

cbolt, are you trying to lead me astray so libertarians won't include me? Or, is there some sort of secret affirmative action ... for libertarians?

Can I be counted in the quota as a libertarian?
6.21.2008 3:16am
cboldt (mail):
-- I am working hard, working really hard to become a true libertarian --
.
Well that's the problem. One can't "work at it."
.
-- I read that libertarians hate affirmative action, quotas and stuff --
.
That's a smoke screen. They want individualized quotas. If you don't hire ME, you've missed your quota.
.
-- are you trying to lead me astray so libertarians won't include me? --
.
Initiation is for chumps. Go ahead and initiate yourself, if you want. If you fail to initiate yourself, sue yourself and the libertarians for discrimination.
.
But I'm not part of that true libertarian group (remember?). I'm just superimposing my sense of nonsense on their clique.
6.21.2008 3:41am
Oren:
and NO new FISA legislation should be signed into law until until this entire Federal Courts Computer System security break-in is flushed out.
And there will be absolutely be no more pizza parties until the King of Mars relinquishes his throne!

Because, if the public learns the true extent (or limit) of secret snooping -- i.e., if the public knows the LEGAL POLICY relating to snooping -- then the bad guys will know it too. Therefore, we can't tell the public how much or how little we snoop. Some of the people in the public are terrorists.
It's too bad that we chose to live under a set of laws then. On the other hand, I'm not worried -- a democracy that fights with one hand tied behind its back still has the upper hand. (Aaron Barak, I believe).
6.21.2008 10:16am
Anderson (mail):
telecoms could have privacy lawsuits thrown out if they show a federal judge that they received written assurance from the Bush administration that the spying was legal

Why on earth would this seem "pretty sensible" to anyone with any respect for the laws' being followed?

The entity seeking to break the law (the executive branch) assures the telecoms that the lawbreaking is in fact legal, and that's supposed to be sufficient assurance for the telecoms? Despite the statutory provisions for warrants?

How about if Prof. Kerr just comes out &writes a post that he does not favor any liability, ever, for telecoms spying on behalf of the White House, no matter what the law says?

--Oh, wait: he just did.
6.21.2008 10:22am
David M. Nieporent (www):
I don't know why everyone here is acting as if immunity is the key part of this bill. (By the way, it's only civil immunity, not criminal.)
6.21.2008 11:35am
Oren:
David, because we would like to set a precedent in which telecom companies politely tell the President something like: "I'm sorry sir but we cannot assist you in breaking Federal Law -- we would be more than happy to help you tap into whatever, as soon as Congress authorizes you do to so".

Alternatively, I suppose I'd be happy enough with: "Ok sir, we hooked you up because there is a $BIG_EMERGENCY even though its technically a violation of the law. We insist, however, that you ask Congress for permission to this within a few months or else we cannot continue to cooperate."

Every telecom company that cooperated knew or should have known that they were cooperating with an illegal program for many years. They should pay. The idea that they get a free ride because the executive asserted that what they were doing is legal -- in the face of almost ironclad legislation to the contrary -- is anathema to the notion of lawful government.
6.21.2008 2:19pm
Richard Aubrey (mail):
As VC commenters often sneer, "Don't like it? Change the law?"
Looks as if somebody went and did.
6.21.2008 3:34pm