Slashdot Mirror
White House Wins On Spying, Telecom Immunity
EllisDees sends in a Washington Post report that Senate Republicans have outmaneuvered Democrats, who withdrew a more stringent version of legislation to control the government's domestic surveillance program. The legislation that will go forward includes a grant of legal immunity to telecommunications companies that have assisted the program.
If Bush failed to uphold the Constitution, he can be impeached (that is, tried) by Congress. I doubt that this will happen. In this case though it's not Bush but rather Congress that is enacting inappropriately. The solution here is to vote them out in the upcoming election. The constitution prohibits "ex post facto" laws, but this clearly refers to laws which criminalize what was not criminal at the time, not laws which de-criminalize what was criminal at the time. This "immunity" law enhanced the provincial atmosphere of the US congress, where individual bills are rampant and particular interests trump national issues. The US excepted I haven't encountered countries where laws are commonly passed which, on their terms, apply to only one person or only one company.
SCOTUS can still review the issue.
Life is not for the lazy.
Not necessarily. The funny thing about the US Senate is that there are plenty of "parliamentary maneuvers" which require 60 votes to overcome. But the Democrats only have a slim 51-49 majority, and that's just because there are two independants that caucus with them. As the Majority party, they have a majority in all the committees and can basically control what gets to the floor in the first place. But once something is on the floor for the full Senate to consider, there's all sorts of mischief that can occur.
In a Democrat controlled Congress, the Republicans can still use "soft of terrorism" to get certain Democrats to vote however they want them to.
http://picayune.uclick.com/comics/trall/2007/trall071001.gif
and
http://www.workingforchange.com/webgraphics/WFC/TMW08-15-07Large.jpeg
"The US constitution forbids ex-post-facto laws" - the generally accepted interpretation of the prohibition on ex-post facto laws is that Congress may not make something illegal after-the-fact; this does not, however, prevent them from retroactively making it legal.
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
It's easy. If you don't know who to contact or how to phrase your objection use this link:
https://secure.aclu.org/site/Advocacy?pagename=homepage&id=727&page=UserAction
Note that you can modify the letter template before you hit send if you don't agree with all of the text or wish to add points of your own.
There is another informational article on Salon.
(*) Does not apply to non-US citizens. (Although nothing actually stops you from mailing them anyway.)
You're right - some Dems did vote along with the immunity-carrying version. And I'm afraid that the ultimate story of what happened on this bill makes the GOP look like childish assholes, and the Dems look like brainless, spineless pansies.
So far, the best collection of linkage and summary I've seen on this has been at The Mahablog (Warning: liberal. Like me, so, deal.)
Case: Katz v. US, 1967. Excerpt, " join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383, and unlike a field, Hester v. United States, 265 U.S. 57, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic, as well as physical, intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment, [p361] and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant. As the Court's opinion states, "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus, a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected," because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra. "
"I'm not sure how immunity can be granted when it clearly go against the US Constitution"
Well, without asking you where in the Constitution you found that information, I'll address you concern (as ill-founded as it is).
Immunity in this case is a GOOD thing. Here's why.
In the case of giving testimony, should there be no immunity, the telcos and their representatives can choose not to incriminate themselves, and thereby avoid giving ANY testimony about who did what when.
Once immunity is granted, the telcos CANNOT refuse to testify on grounds they may incriminate themselves. Should they chose to avoid giving testimony, contempt is now an option.
Immunity prevents the telcos from hiding behind the "self-incrimination" excuse.
And before you come up withe reasons why it won't work, look at all the mob trials. Immunity is SOP there, and works incredibly well for exactly the reasons I stated.
From what I can tell, all the crowing about the immunity being a bad thing comes from the ignorance of the population that reads slashdot, and has no bearing on reality.
"Unfortunately, it probably takes a lot longer then 72 hours for any intelligence gathered to reach a person who can actually use the intelligence. 72 hours is 3x too long for a television show and probably 1/10th of the time needed for the intelligence bureaucracy to do anything with it."
I'm really not sure what point you're trying to make here... but it sounds like you're confused about what the current law allows and reacting to the timeframe without understanding what the timeframe relates to.
The powers that be can do thier survelience, then after it has been done and while they are acting on that information go to a court and say "Hey, we spied on these people, here's why and here's why we couldn't wait to ask you before we did it; do you think that we were right to do so?"
And you'd have no objection to officials having a camera in your bedroom either. I mean, it's obvious that they'd only use it if they thought a serious crime was being committed. I can't see how a corrupt official could misuse it.
PBS has a GREAT GREAT documentary about the Bush's Administration...errrr...Cheney's Administration abuse of Executive power. "For three decades Vice President Dick Cheney conducted a secretive, behind-closed-doors campaign to give the president virtually unlimited wartime power" PBS Frontline News. http://www.pbs.org/wgbh/pages/frontline/cheney/
What the framers are telling us here is to pay attention to the spirit of the Bill of Rights, not just the letter. There is no right of privacy explicitly recognized in the Bill of Rights, but the SCOTUS has found it in the "penumbra" of various provisions of the Constitution. This kind of language makes a strict constructionist spit, but you have to restrain the government from attacking the underlying interests protected by the Bill of Rights, otherwise the Ninth Amendment means nothing.
With respect to the idea that "If it's not in the Constitution, the federal government's not allowed to do it," that makes things seem more simple than they are. It is true that the government only has powers granted to it by the Constitution, but the Constitution is not a strict enumeration of government powers. The government has powers which are reasonably derived from the responsibilties it has been given. "Reasonable" is a big problem, I agree. If we were writing it today, we'd probably write it differently.
I think one kind of situation the tenth applies to is the gay marriage debate. This is precisely the kind of thing that is up to the states and to individuals living in them. If Massachusetts wants to mary gays, and the gays themselves want it, then it's none of the other states' business. They don't have to recognize the marriage, but they have no business trying to undermine Mass laws. I think, however, the Federal Government is obliged to recognize Mass marriage law.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
The Ex Post Facto exclusion meaning is thus:
Now, it is legal to fart in the Capitol Building. You fart in there.
They pass a law saying it is illegal to fart in the Capitol Building, pre-dating the bill, so you are arrested. Nuh-huh-huh.
Ex Post Facto means literally "After the fact".
Case in point: Indiana Chicken 'rapist'
He was tried under animal cruelty statues and theft. Note at that time there was no bestiality law in effect, so Indiana could not try him on a law that did not exist at the time of said crime. Now, there is a bestiality law on the books (thanks to the chicken fucker).
The problem is that it is not at all obvious that ANY of the activity was "illegal" or unconstitutional.
It's just that people like to think of it as being that clear-cut, when it isn't.
Collecting foreign signals intelligence on foreign targets (i.e., non-US persons) outside of the United States DOES NOT (and should not) require a warrant, or any court oversight. That includes:
1.) When the other end of the conversation is also foreign; and
2.) When the other end of the conversation is within the United States
Yes, you read that right. Just because a target of foreign intelligence collection makes a call to even a US citizen within the United States doesn't mean it suddenly requires a warrant. That's how it's always been. A warrant is only required when it is a US citizen and/or the target is on US soil. That has always the case, and is the case with all iterations of the various legislation (Protect America Act, RESTORE, this agreement, etc.).
The "new" issue is that the United States should also be able to do 1.) and 2.) above without a warrant when the traffic travels through the United States, either incidentally or by design. The warrant requirements for domestic surveillance are designed to protect the target of the surveillance, not the mechanisms, processes, techniques, or companies that enable the surveillance. If the target of the surveillance does not fall under warrant requirements, no warrant should be required.
The legal questions arose because the interception of the communication happening on US soil put it in an understandably gray area. But it was NOT clear that it was illegal or unconstitutional, as some seem to think it so clearly was!
The whole process of court oversight and warrants is designed to protect people who are afforded the protections of the laws and constitution of the United States. Foreign persons outside of the United States DO NOT get these protections. You may think they do (you'd be wrong), or think they should (laudable, but laughable, idealism), but the fact of the matter is, they do not.
The Protect America Act was overly broad and prone to abuse because one person, the Attorney General, was the entity to "sign off" on the declaration that a target was reasonably believed to be a non-US person outside of the United States. The new legislation will use FISA processes for that signoff, but still without warrants.
The funny thing everyone is missing here is that the only point of contention was whether or not telecoms should be granted retroactive immunity for the assistance they already provided. The House Democrats are the ones who introduced the RESTORE Act. Here, look and see what it does. It allows warrantless surveillance of communications where a foreign target outside of the United States is a party, regardless of where the other endpoint is, and regardless of whether the intercept is done on US soil. The primary difference between it and the Protect America Act is that FISC (the FISA court) oversees the process, targeting procedures, and signs off on targets being reasonably believed to be outside of the United States.
How is it illegal to provide assistance for the monitoring of things that have have already been found to not require a warrant (in the case of the logging of start and endpoints of phone numbers, but NOT content, which constitutes a "pen register", or of targets that have no warrant requirements whatsoever (non-US persons outside of the US)?
Warrants are there to protect US citizens and other persons afforded the rights of the Constitution and US law. Warrants, in this context, affirm that the target of surveillance is protected by applicable laws and has certain rights. Warrants provide a judicial oversight process.
Foreign targets outside of the United States have NEVER had any of those rights or protection
That would be perfectly legal.
And perfectly OK with me. And most of the people responding here.
But that isn't what this bill does.
It's already legal to wiretap suspected criminals, whether they be terrorists, thieves, or drug dealers. Even if they're only in the United States with no international part to the conversation whatsoever. And it has been legal for a very long time.
With the advent of FISA, it even became legal to begin the wiretap first, and get the warrant later. And even that can be OK in some cases. Shaky, and easy to abuse, but a good case can be made that it's needed.
Skipping the warrant altogether, giving blanket permission to wiretap anyone, for any reason, with no record ever being made of it having been done, or why, or who authorized it, yeah, that's a very, very, very bad thing by an order of magnitude over what was there before.
If the masses can keep you down, you're not the Ubermensch.
Wrong Wrong Wrong. How can you be so wrong and yet get modded insightful (who says Geeks can't be Conservative stooges)? You've mashed different FISA issues together to make it sound like there were no FISA problems. I believe thats called a strawman, but you beat the crap out of him, congrats. No way you work at a telecom, no siree.
As noted below parts of FISA have been ruled unconstitutional. SO YES it is illegal. Your strawman argument is crap. A court ruled it was illegal to intercept communications where both parties were outside the US, that was the reasoning behind updating FISA. The Democrats were on board with that part, but the repubs put all kinds of extras in there (like the immunity) which is not exactly an earth shattering development (evil people do evil things). Yes some Dems love big business and don't mind the idea of legalizing anything that helps profits, but thats not a case to dismiss all the problems with FISA or the administrations handling of this issue. Then theres all the scare tactics the Repubs used to ram the vote down congresses throat. Everything around FISA has been yet another Repub. clusterf#!k.
If you want a detailed, thoughtfull analysis from, i dont know, a constitutional lawyer, I suggest you check out Glen Greenwald's blog at Salon. He's far more knowledgable than I.
http://www.salon.com/opinion/greenwald
might also check out the eff. who are involved in this case
while you're there, give 'em some money, because there are too few people fighting the good fight and far too many like the parent spreading misinformation.
http://www.eff.org/deeplinks/2007/09/parts-fisa-held-unconstitutional
http://w2.eff.org/Censorship/Terrorism_militias/fisa_faq.html