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.
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?
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.
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
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.
no-lawbreaking is ok when congress says it is.
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?
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 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.
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.
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.
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.
If you are so confident of no wrongdoing, then why make everything that ever happen a state secret? Why the cover up?
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.
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Government gets caught in 2005. Congress erases the line in the sand
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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.
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Fool me once, shame on me.
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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.
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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.
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I generally don't rely on the press to report accurately. Period.
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YMMV
Agreed. So why is it surprising that people are upset with an administration that found that to be too restrictive?
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).
Because they think FISA protects their civil liberties when it does no such thing.
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
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.
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?
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.
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.
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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.
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.
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.
Find out how your representative voted, and if you don't like it then you can let them know at the polls.
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?
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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.
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-- Why are blanket mass tapping of US citizens telecommunications necessary? --
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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.
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-- how can the current compromise make government any less intrusive? --
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The new bill has unprecedented protection for privacy. It even protects the privacy of Americans abroad.
like it or not they are non political under the law. sorry.
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.
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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.
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Wuff.
Before, or after, privatizing the sidewalks? What are the priorities here, anyhow?
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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.
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?
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Well that's the problem. One can't "work at it."
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-- I read that libertarians hate affirmative action, quotas and stuff --
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That's a smoke screen. They want individualized quotas. If you don't hire ME, you've missed your quota.
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-- are you trying to lead me astray so libertarians won't include me? --
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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.
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But I'm not part of that true libertarian group (remember?). I'm just superimposing my sense of nonsense on their clique.
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).
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.
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.
Looks as if somebody went and did.