In Courtroom Showdown, Bush Demands Amnesty for Spying Telecoms

[BlueJessamine]

Source: WIRED

SAN FRANCISCO — The Bush administration on Tuesday will try to convince a federal judge to let stand a law granting retroactive legal immunity to the nation's telecoms, which are accused of transmitting Americans' private communications to the National Security Agency without warrants.

At issue in the high-stakes showdown — set to begin at 10:00 a.m. PST — are the nearly four dozen lawsuits filed by civil liberties groups and class action attorneys against AT&T, Verizon, MCI, Sprint and other carriers who allegedly cooperated with the Bush administration's domestic surveillance program in the years following the Sept. 11 terror attacks. The lawsuits claim the cooperation violated federal wiretapping laws and the Constitution.

In July, as part of a wider domestic spying bill, Congress voted to kill the lawsuits and grant retroactive amnesty to any phone companies that helped with the surveillance; President-elect Barack Obama was among those who voted for the law in the Senate. On Tuesday, lawyers with the Electronic Frontier Foundation are set to urge the federal judge overseeing those lawsuits to reject immunity as unconstitutional. At stake, they say, is the very principle of the rule of law in America.

"I think it does set a very frightening precedent that it's okay for people to break the law because they can just have Congress bail them out later," says EFF legal director Cindy Cohn. "It's very troubling."



Read more: http://blog.wired.com/27bstroke6/2008/12/feds-eff-arguin.html

---

The EFF is now challenging the immunity legislation on the grounds that it seeks to circumvent the Constitution's separation of powers clause, as well as Americans' Fourth Amendment rights against unreasonable searches and seizures.

"The legislation is an attempt to give the president the authority to terminate claims that the president has violated the people's Fourth Amendment rights," the EFF's Cohn says. "You can't do that."



Oral arguments in Walker's courtroom are scheduled for 10 a.m. PST on Tuesday.

[L. Coyote]

1. They have a very good argument and should prevail in this court.

[Kevin Cloyd]

28. THIS PROGRAM STARTED MONTHS BEFORE 9/11

The argument of those challenging this law is even better when you factor in the fact that the Bush administration STARTED THIS PROGRAM BEFORE 9/11/2001.

They went to Qwest prior to 9/11 and ask to tap their data and the CEO of Qwest said "No, it is not legal.” So the feds canceled a bunch of contracts with Qwest which hurt their bottom line profits. The CEO sold some of his stock. The Feds prosecuted him for insider trading and he is currently ROTTING IN A PRISON CELL

Was he allowed to present any of this as a defense in his trial? NO

[rhett o rick]

47. I hope PE will pardon him. nm

[defendandprotect]

52. Unbelievable---!!! Someone who tried to protect us...

rotting in prison ---

[Raineyb]

35. Didn't the spying start BEFORE 9/11/2001

And as such their national security argument is a steaming pile of bullshit. In addition, if as the Bush Administration argued the Telecom companies didn't do any thing (another steaming pile but I digress) then what the hell do they need immunity for in the first place?

Allowing companies or anyone to break the law under color of authority then getting Congress to grant immunity for the law breaking that the government authorized means that there's no law that our government need obey. If you think that's the kind of precedent that will benefit the country then you seriously should check out the definition of fascism and see if you want to live under such a system because that's what we'll be headed for.

Regards

[UpInArms]

2. I shall hope that the EFF prevails and the BFEE

goes and implodes on its unConstitutional self

[barbtries]

3. will it be on cspan?

i'd like to see that.

[PassingFair]

4. I don't think we stand a chance. But we can hope a little.

[EVDebs]

5. Shred the Fourth Amendment and, while you're at it, the entire Bill of Rights nt

[pacalo]

6. "Preemptive immunity" may suggest to a judge that a crime was committed.

[AlbertCat]

56. Indeed!

How can you grant immunity if they haven't committed a crime? If they have committed no crimes, then they should just go to court and prove their innocence. What's the problem? We don't need any special thingie to deal with this situation. We have a system in place already. It's called a court of law.


P.S. Love the giraffe!

[acmavm]

7. ..

...President-elect Barack Obama was among those who voted for the law in the Senate...

[Amonester]

8. hmm... because he did not want the mcCrazy camp to accuse him...

of being 'soft on terra' during the campaign if he had voted 'nay' eh?

and they couldn't... and they LOST.

You and I know how they 'operate'

[orleans]

16. and now i'm hoping that he starts standing up for our constitutional rights

instead of just going along to get along. (i suspect or i hope this is similar to the same reasons hillary voted "for" the war--she didn't want to seem "weak" if she was going toe to toe with a republicon candidate. with obama--i'm hoping he didn't want to seem too "radical" and that was why he voted for the fisa bill. now that he is going to be running the country i hope he does the right thing by the american people and not bend over backward to appease the corporate structures and allow bush to get away with fucking us all)

[JackRiddler]

39. bullshit.

You really think this issue would have made the difference in the election?

Not with the people -- it would have been a worthy fight. The other soft-on-terrorism bullshit from the McCain side didn't stick, in fact it backfired. The country could have well used a debate on the violation of constitutional rights.

But maybe with the national security state, however; they have means to sabotage everyone, of course. But if catering to them utterly is a precondition for taking office, that office will remain powerless. When does the national security state get challenged? Apparently never from those who would hold high office. This is not democracy, this is not a republic. I'm not too optimistic about people power making a change, either, but that's the only place it can come from proactively; otherwise we may be doomed to watch the system rot out its miserable existence until it collapses from its own contradictions in ten years or a thousand.

[bluesmail]

9. Retroactive Immunity is in itself Orwellian...there is NO basis for it

to be upheld by ANY court/what law abiding judge would EVER uphold this ruling? (Rhetorical question).

[qazplm]

25. I guess I'm confused because

most immunity is retroactive.

You either give immunity to someone because they've done a crime and you need their testimony so they get immunity for their past crime and you get their testimony or you suspect they've done a crime and you need it so you give them immunity for their suspected past crime.

Either way, it's retroactive.

You certainly don't give immunity for future crimes.

[KoKo]

10. Fingers crossed...but then we have had so many let downs....

I don't want to get my hopes up on this one.

[tritsofme]

11. As I asked in another thread, doesn't Congress have the power to do this under Article III Section 2

of the Constitution?

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.


And I believe Congress has stripped the courts of jurisdiction in the past, and that the SCOTUS upheld it.

[digidigido]

12. Article 1 Section 9 of the Constitution

No bill of attainder or ex post facto Law shall be passed by Congress

[orleans]

17. in other words...? n/t

[PBS Poll-435]

22. In other words....

"Bill of attainder" means that a certain subset is guilty of a crime without the opportunity for trial.

"Ex Post Facto" means convicting a person guilty of a crime before the act was deemed "criminal."



My interpretation of the Constitution and the bills passed by Congress is that you can not "retroactively" ""pardon"" an action. If it was illegal at the time, the defendant has due process to pursue and clemency/pardon. That is it.

[skepticscott]

24. The ex post facto provision doesn't apply

It pertains only to laws which attempt to punish retroactively, and it only applies to criminal laws, not civil.

[Piewhacket]

41. I think it clear...

That an "ex post facto law" would be unconstitutional (unlawful)
in both criminal and civil context, and whether it acts to create
liability or extinguish it. So obviously the telecoms must argue
that it is not an "ex post facto law" if that becomes an issue.

But there is lots going on beyond ex post
facto concerns. Here's an excellent window into
post-immunity thinking of the judge in the case (Walker)
and what he thinks are key issues....

(27K pdf)
http://www.eff.org/files/filenode/att/questions12108.pdf

Here's one of his interesting questions that transcends
the ex post facto issue...

Case M:06-cv-01791-VRW Document 528 Filed 12/01/2008
United States District Court For the Northern District of California
Question 2:

What exactly has Congress created with § 802 (in Pub L No
110-261, 122 Stat 2467, tit II, § 201 (2008))? It does
not appear to be an affirmative defense but rather
appears to be a retroactive immunity for completed acts
that allegedly violated constitutional rights, but one
that can only be activated by the executive branch. Is
there any precedent for this type of enactment that is
analogous in all of these respects: retroactivity;
immunity for constitutional violations; and delegation of
broad discretion to the executive branch to determine
whether to invoke the provision?

[skepticscott]

44. The Supreme Court decided

over 200 years ago that the ex post facto clause of the Constitution only applies to criminal cases. Read Calder v Bull

[Piewhacket]

51. 1798. They don't write them like that anymore.

Gad, Marbury was 4 years LATER.
Checking.....
OK, you win.

[skepticscott]

59. If they decided that case today

it might have been different. 1798 was just after a big financial crisis when a lot of banks had failed, but Congress hadn’t gotten around to writing the bankruptcy laws that the Constitution empowered them too. The SC knew that if they ruled the ex post facto provision applied to civil law, the bankruptcy laws couldn’t be applied retroactively, so they limited it to criminal law, and it’s stood ever since.

[Piewhacket]

60. Yes, today we are more... ahem... sophisticated...

and might more readily recognize that retroactive laws are too often
fraught with great mischief and that the distinctions between civil
and criminal be at times tenuous, superficial and arbitrary.

After all, what monstrous law is it that retroactively sets the criminal
free while depriving the victim of all remedy? It may be mercy
bestowed upon the one, but is it justice for the other?

Yet legal rules are sometimes harsh, and as you have explained, historical
context and stare decisis are often sufficient reason to uphold the rigid
rule .. or at least, until better reasons appear.

We live in perilous times. FISA and telecom immunity is a monster.
Therein have been forged oppressive chains of slavery to hang round our necks.
Then again, men have always lived in perilous times, with ever greater
and more threatening monsters. But in such cases and times of peril what
choices are we given but fight, die, or endure our chains.

Nice post and comments. Thanks for the cite and interesting historical.

[DissedByBush]

43. Don't bring pardon into this

Bush would have already done it if he could. That means even Bush thinks Congressional action is necessary. Thanks again to Harry and Nancy for folding on this, maybe it was the big telco donations to the Democratic Convention, maybe they're just too chicken to stand up to Bush.

[McCamy Taylor]

13. Has Judge Vaughn ruled in any similar cases?

[mbperrin]

14. What happened to no ex post facto laws?

Oh, I know, referring to the actual Constitution is just "crazy talk."

[Poll_Blind]

18. Article I, Section 9, paragraph 3: "No Bill of Attainder or ex post facto Law will be passed."

:wtf:

PB

[HamdenRice]

26. ex post facto means making something criminal retroactively

That's different from making something that was criminal not criminal retroactively. The ex post facto clause does not apply.

[AlbertCat]

57. The ex post facto clause does not apply.

Which means a crime was more than likely committed...and requires some kind of immunity to keep it from going to trial to confirm or unconfirm that implication....no? It's not unlike an admission of possible guilt.

Just another reason to go to trial.

Besides, aren't these private companies? Why must they bow to pressure from the Exec branch of government? Isn't their obligation to follow laws like the rest of us? If the Prez tells me to do something I know is against laws passed by Congress....the body that makes laws, not the Exec... am I obliged to do it, or is the real decision MINE?

[Titonwan]

15. Next to Impeaching Bush and Cheney,

this is THE most important ruling in our lives, at the moment. If they (the Telco's) can get away with this, they will never stop chipping away at our rights.
Donate to the EFF. They are looking out for YOUR internet rights. If one day you can't go to a site because it's been banned or SWAT
breaks down your door for something you commented on at a blog, it will be because you laughed this off. This IS our chance to get FISA right.
Forget about Obama doing it. He's breaking his back, bending over backward to please the right. This has to be OUR fight, alone, I'm afraid.

[Atman]

32. I don't think it is the telcos "getting away with" anything.

They're certainly happy to accept the immunity, because they know what they did was illegal. But they, like the proverbial everyone else, were caught up in the war-time frenzy, a pro-Bush media, and the heavy-handed tactics of BushCo. They saw what happened to the Qwest guy. They knew BushCo had the power to do damned near anything it wanted. I'm certain both Bush and Darth offered them assurances that they'd had it all figured out legally, and that they'd better just go the hell along with it.

Again, it is BUSH that wants this immunity, because those same phone records which captured innocent conversations also very likely captured damning conversations from BushCo personnel. And then there is the vote tabulation issue. All the tabulating in 2004 was transmitted over telephone lines to a central tabulator. Phone records would most likely reveal the fraud.

.

[Piewhacket]

38. Well.. of course they want to "get away" with it...

I think your first paragraph is pretty close, but you mention only the "stick". There was also the
"carrot" of BIG government contracts.

Your second paragraph, concerning Bushco phone records... needs more analysis. Interesting point,
sure, but how you get these records into evidence?

Nice post, Atman.

[defendandprotect]

53. As I recall this any such approach is supposed to be reported to FISA Judge ...

Were they all Bush people--???

[midnight]

45. This is a fight worth standing up for.....

[noise]

19. Hopefully

fearmongering will not be considered an acceptable legal justification for preventing the lawsuits from going forward.

[davidthegnome]

20. Screw em

I'd be willing to let them off in exchange for Bush and all the other big shitheads. We'll never get them though (the ones ultimately responsible for all this crap) so I'll settle for what we can get. Fry em... sue em, jail em, I don't care.

[snappyturtle]

21. K&R nt

[Norrin Radd]

23. KR

[MannyGoldstein]

27. If Qwest Could Refuse, They All Could Have

Granting immunity would be a hideous precedent.

[Atman]

33. Remember, BushCo is a crime family. The Qwest CEO was the horses head in AT&Ts bed.

.

.

[jmowreader]

54. Ask Joe Nacchio what happens when you refuse

http://www.msnbc.msn.com/id/19996449/

Qwest refused to tap Americans' telephones

The government responded by cancelling a bunch of contracts with Qwest; this caused their profits to fall.

Joe Nacchio, CEO of Qwest, sells some of his stock prior to Qwest's share price falling from $60 to $2 (because of the cancellation of the government contracts)

Joe Nacchio gets thrown in prison for insider trading; the government calls what he did "overarching greed."

The rest of the telco industry wisely decided wiretapping without FISA approval was a fine and patriotic thing to do.

My opinion:

1. Give Joe Nacchio a pardon and let him out of prison.

2. Grant immunity to the telcos.

3. Find everyone in the government, including Bush and Cheney, who had a hand in either Nacchio's railroading or the wiretap program and throw THEM in prison.

The telcos didn't think of this on their own, they wouldn't have DONE it on their own, and Joe Nacchio taught them the penalty for disobedience. The BFEE is worse than the Mafia; it's time to put John Kerry (who made his name imprisoning mobsters) on this case.

[pleah]

29. K&R

[keepthemhonest]

30. Can someone give me all the reasons Obama voted for that?

I hope they are found guilty.I am not understanding Obama's rationale.He seems like a just person so hopefully he will be for justice in every case over bipartison shit.

[Piewhacket]

36. Really really good question. The best I can figure....

is that he
1) had an election to win, and
2) figured it was going to be found unconstitutional,

or,

3) he felt sorry for the poor little telecoms.


Now my turn,

Q: When did ATT (board) start the wiretapping?
Q: When did ATT sell itself to SBC.

[Atman]

37. I think it's fairly simple: election year politics.

Obama, already accused of a lack of experience and being soft on defense, could not possibly vote this down. Remember, Bush was in heavy rotation on the teevee telling 'Murka that we'd be attacked again the the evil doers would run rampant if the bill didn't pass. Of course, he was willing to veto it and put us in harm's way if the telcos didn't get the immunity. But the point is, if Obama had voted against this, the GOP media would have had a field day with it. It was just politics. Shrewdly played. I suspect he, too, knew it would eventually be found unconstitutional, so he hedged his bets.

.

[Piewhacket]

42. Agree.

I was (am) hopping mad, mind you.
But god help America if he had lost. If it was calculated
choice, he probably got it right. But I was right to hold my nose
in silent protest of that decision as I voted for him
for president. (true).

Another nice post from you Atman.
I'm a might stingy with such compliments, as a rule. Two for
you in one day. You're on a roll.

[keepthemhonest]

48. so I just got back here.

Thanks for the repoly.

They gave Bush what they wanted I am totally guessing here but after "the patriot act." Hasn't this lawsuit been going on for about 2 years or so now?

[Atman]

31. The phone records will show how the vote was stolen over telephone lines.

THAT is the one and only reason George W. Bush was so willing to put the safety of the telecoms ahead of the safety of the nation. Remember when he said we'd face imminent hard if immunity wasn't granted immediately? But then he said he'd veto any bill that didn't grant them immunity. So which was it, George? Which was more important? Safety of the telecoms or of the nation you were ostensibly "elected" to defend?

Nah. Nothing to do with wiretaps. Since AT&T et al were supposedly recording/storing EVERY transmission, it would stand to reason that the votes sent from precincts to the central tabulators via telephone lines would also be recorded. If those records are subpoenaed (pretending that Bush would ever allow a subpoena to be carried out), the whole vote-rigging scam is laid bare.

Bush doesn't intend to let that happen.

.

[stubtoe]

34. Now THAT makes sense.

Otherwise, what would Bush care about the fate of AT&T and the rest.

[keepthemhonest]

49. very interesting...

I am expecting justice here,mostly because of Obama's legal background. This is one thing I expect of Obama to restore order to our democracy while he is in.Damn it.That is one thing that would piss me off, if our constitution is not put back together again.Obama has shown though that it is important to him as well. I guess I should not worry, but I 'll be watching... waiting.

[dchristie]

40. So much for all that cool and welcome "change" we voted for

"President-elect Barack Obama was among those who voted for the law in the Senate."

Something tells me we've been "had", gang.

[eppur_se_muova]

46. Sing together now -- "You CAN'T always GET what you WANT ..." nt

[jeff30997]

50. Fuck him!

Fuck him!Fuck him!Fuck him!Fuck him!Fuck him!!!!:nuke: :grr::nuke:

[orbitalman]

55. DITTO

[Vidar]

58. Not only should these providers not be granted immunity, they should be banned from the net.