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Senate To Reconsider Wiretap Immunity
bughunter passes on a report from Wired Threat Level about the effort by Democratic lawmakers to roll back some provisions of the Patriot Act. Three of its provisions expire at the end of this year, and the reform attempt is expected to be attached to legislation to renew them. "Lawmakers are considering key changes to the Patriot Act and other spy laws — proposals that could give new life to lawsuits accusing the nation's telecommunications companies of turning over Americans' electronic communications to the government without warrants. On Oct. 1, the Senate Judiciary Committee likely will consider revoking that immunity legislation as it works to revise the Patriot Act and other spy laws with radical changes that provide for more government transparency and more privacy protections." Among the other likely goals of reform efforts, according to Wired, are limiting the government's power to issue National Security Letters, and limiting "black bag" searches to cases of spying or terrorism — 65% of past searches were authorized in drug cases.
That the War on Drugs has done more to rape civil liberties than any other government initiative in modern times.
I'd like to see a show of hands - who here thinks this will actually come to pass?
Anyone? Anyone?
Yeah. That's what I thought...
The fine summary leaves out the minor fact that Obama is opposed to watering down the Patriot act.
So much for hope and change.
Senate Democrats propose surveillance law changesWednesday September 23, @08:29AM
The AP is reporting (via yahoo) that Senate Democrats are actually trying to restore some of Americans' rights and freedoms that were lost when government panicked after 9-11.
Free Martian Whores!
As expected when they proposed it--the Patriot Act was not used as advertised.
Just 3% of the "National Security" Letters were used for terrorism-related cases.
65% of them were instead used for drug cases. So many of the actions taken by the Bush Administration to allegedly protect us from "Terrorists" were instead used for the meat and potatoes Law and Order issues the Republicans favor. Despicable!
What were the other 34% of unconstitutional searches for? My understanding is that only 3 out of over 700 warrantless searches and wiretaps were for cases that involved terrorism. This is why there were FISA courts in the the first place to prevent these kinds of abuses. Welcome to the land of the free and the home of the brave, that is until someone decides to declare you an enemy of the state.
It's all about the possibilities!
From the AP today:
"PITTSBURGH â" Armed with the disclosure of a secret Iranian nuclear facility, President Barack Obama and the leaders of France and Britain demanded Friday that Tehran fully disclose its nuclear ambitions "or be held accountable" to an impatient world community."
Ooohhh, such strong language! I'm trembling just reading it, so Khomeini must be pissing in his robe! I think we all know from observing the UN's actions around the world from Desert Storm to today that they collectively lack the balls to take any meaningful action anywhere at any time. Even the sanctions against Saddam Hussein's Iraq were just a means through which people lined their own pockets (including Kofi Anan's son, if I recall correctly). And when the UN runs up agains someone who actually pushes them to make good on all of their empty threats and silly posturing (see GW Bush), they seek to undermine and discredit them by mocking them as a "lone ranger cowboy." Sorry, pussies. Don't be surprised when men of action actually call your bluff.
http://yro.slashdot.org/story/09/09/18/1913248/New-JUSTICE-Act-Could-Roll-Back-Telecom-Immunity?art_pos=2
The actions the telecoms took were legal under the PATRIOT act, which was the law of the land at the time. You can't just go back and make them illegal now, that's blatantly unconstitutional (and a much graver assault on all of our liberties than unwarranted wiretaps). Take out the provision now and chalk it up to another lesson learned: be more careful about what gets passed into law in the future (not that there's any hope that any politicians will learn that lesson).
God invented whiskey so the Irish would not rule the world.
People willing to trade their freedom for temporary security deserve neither and will lose both. -Benjamin Franklin
I was pissed as all get out that the telcos got immunity for cooperating with an illegal government action. They should have had their asses nailed to the wall, as a reminder that businesses should not accept the government at its word about national security.
At this point, however, I wonder if revoking the immunity is a good way to go. It's not quite the same as double jeopardy, since the companies were not acquitted by a jury, but it's close. In order for companies to function, they need some predictability. Congress' granting retroactive immunity to the telcos set a bad precedent. But having done so, revoking it also sets a bad precedent.
On the other hand, is it ever late too late to seek justice?
FTFA... limiting the government's power to issue "national security letters,"...
Translation: The President of the United States does, in fact, NOT have the power to issue a royal decree which suspends the Constitution of the United States of American whenever he fucking feels like it. Nor do his minions have such authority. The laws regarding due process, privacy, unreasonable search and seizure, and so on, shall stand, and we are very, very sorry that we allowed the terrorists to win by scaring us into passing this absurdly named "Patriot Act".
"National Security Letter" = "Writ of Assistance"
Controversy over these general writs of assistance inspired the Fourth Amendment to the United States Constitution, which forbids general search warrants in the United States.
yes, during a time of panic when all most all of their constituents wanted it. They did what the majority of the people they represented wanted. They did have the foresight to put in limitation and an expiration.
The Kruger Dunning explains most post on
and so it the author of the article. Read hisother stuff, he gets hit be misleading people to support an anti government stance.
However, he still could cover up the fact that Obama thinks that FISA is a good thing. I would say that in situation where and immediate need is at hand, getting warrants in a reasonable time after the fact is a good thing.
Not all of the PATRIOT act is bad.
The Kruger Dunning explains most post on
Just to be clear, there are TWO things going on here. Please don't get confused.
1. There are three key provisions of the Patriot Act that are set to expire at the end of the year. Note that Pres. Obama and the Ministry of Justice want to renew these provisions.
http://www.mainjustice.com/2009/09/15/justice-department-supports-renewal-of-patriot-act-provisions
2. This article is referring to Russ Feingold "S. 1686" bill (aka the "Justice Act,") which is basically a watered down version of the original Patriot Act.
I have to give Feigngold credit for his voting record on civil liberties. My concern however is that his bill will be amended to renew the expiring provisions, preserve retroactive telecom immunity, and do very little to restore civil liberties. Recall that the Democrats pretended to put up a fight about telecom immunity when the new FISA legislation was being debated (voting it down once) before eventually approving it (in spirit of bi-partisanship).
IMHO, the best approach (assuming you care about civil liberties) is to prevent ANY new legislation from passing, thereby allowing the expiring provisions to die.
Any actual prosecution in the courts will be complicated by the ex-post-facto aspect of all these laws changing back and forth.
Immunity should only be pulled if the telcos weren't depending on it when they made their decisions.
If Congress retroactively pulls the immunity teclos were depending on, then companies and individuals will not be able to trust government promises of civil immunity ever again. The next time the government wants to strong-arm the telcos, they will have to use tougher measures, like threatening to punish them for non-cooperation. Do we really want our government using such tactics after the next 9/11? They used them where they had to after the last 9/11, there is no reason to think they won't in the future.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
The actions the telecoms took were legal under the PATRIOT act
No, they weren't. Not even USAPATRIOT authorizes unlimited spying on domestic sources with no warrant. And nobody in the government has ever even claimed that the actions were legal under USAPATRIOT. The only statutory legal justification for the program would have been FISA and they did not go through FISA. The only claim on legality they ever made was AG Gonzales' legal theory that the President can ignore any law he wants as long as he thinks it's really important for national security that he do so -- a legal theory with what I will generously call "flaws".
Not even John Ashcroft thought the surveillance program was legal, and he was a huge proponent of USAPATRIOT. Does that not tell you something?
That's why Congress had to retroactively make those actions legal. That is the ex post facto law. Undoing an ex post facto law is not, itself, ex post facto.
The enemies of Democracy are
Granting immunity after the fact is not ex post facto. Ex post facto means to make something illegal after the act has been done. Whichever theory is correct in this instance (that the acts were legal at the time, or the acts were made legal later), making them illegal now would be a violation of the ex post facto provision and should not be pursued.
Congress told the telecoms it was all good and they could go about their business. It would be the height of tyranny for Congress to change its collective mind now and go after them. Whether you agree with what happened or not (and for the record, I do not, I think the telecoms should've just said "No" to the requests), the moment has passed and there's nothing to be done. Any actions taken against the telcos now would be far, far worse for us all.
God invented whiskey so the Irish would not rule the world.
Granting immunity after the fact is not ex post facto. Ex post facto means to make something illegal after the act has been done
Strictly speaking, that isn't true. Retroactive legality, aka "amnesty" is a class of ex post facto law, though they aren't as universally considered unconstitutional. And if you're making the distinction between "immunity" and "legality", then removing immunity isn't changing legality either.
Whichever theory is correct in this instance (that the acts were legal at the time, or the acts were made legal later), making them illegal now would be a violation of the ex post facto provision and should not be pursued.
Actually that matters hugely. Ex post facto is about making something illegal relative to when the act was committed. Act was illegal when committed, act is illegal after new law is passed, law is not ex post facto. The whole point of prohibiting ex post facto laws is so that you don't do something that according to the law at the time is legal, and then they make that formerly legal act an illegal one and punish you for it.
Well when the act was illegal at the time, and equally illegal later, then nothing has changed and that's not ex post facto. The fact that there was a brief period after the illegal act was committed where it was legal makes no difference. The telcos did not commit these acts during that period. It was not legal when they did it. It was a crime.
It would be the height of tyranny for Congress to change its collective mind now and go after them.
No. The height of tyranny was giving corporations a pass for breaking the law -- not a law against freeing slaves, or against women voting, but a law and a Constitutional Amendment against spying on the American people without warrants. Granting amnesty for acts of tyranny is tyranny! Undoing that tyranny is not tyranny, it is the opposite of tyranny!
As I say in another post, I'm not really convinced that we should spend a lot of effort prosecuting the crimes of the last 8 years. I'm not sure it's productive. But I'm 100% certain that it is wrong to retroactively make those actions legal. They should and must remain illegal. This bill will make them remain illegal. It was an act of tyranny to make them legal, not just retroactively but into the future as well. Undoing that is the correct action, your arguments otherwise are completely backwards. Whether we prosecute those crimes is another matter.
I'm willing to forgive, but not to whitewash. I will not accept making their crimes into not-crimes. That is heinous and wrong.
The enemies of Democracy are
Legal or illegal is irrelevant because the immunity law didn't make them either. Under existing law (at least since the 1968 Omnibus Crime Control and Safe Streets Act of 1968), anyone who helps the government in wiretaps or searches, if they are presented with documentation claiming it's legal and the government is entitled to the information legally, then presenting that documentation is a complete defense against any civil or criminal action. Now the law specifies what documentation is acceptable and in 1978, it was amended with the passage of FISA to include warrant-less wiretaps ordered by the AG. Carter wrote an executive order giving more people the power to fulfill the signing of the orders and Clinton expanded FISA's warrant-less taps to include physical searches by an executive order. It's further been amended by the Communications Assistance for Law Enforcement Act (CALEA), the patriot acts and one or two others which modify parts that the complete defense authorize.
What this boils down to is that the telecoms already had immunity. The problem is that the documentation that would allow them to realize their complete defence was classified as a national security secret making any disclosure of the contents of the orders a felony carrying 5 years to life in prison with the possibility of capitol punishment. The immunity law did nothing more then allow the telecoms (or anyone who assisted the government) to present the claim to the court of review which then asked the department who issued it if it's real. If so, they then ask about it's necessity to remain secret. If it needs to remain secret, the court of review instructs the court holding the actions to dismiss it without disclosing any of the secret information. If the order doesn't need to be kept secret, it's returned to the telecoms with instructions to present it as their existing complete defense. If the order isn't legitimate, the telecoms get nothing. I repeat, the telecoms only get their immunity if it would have already existed and could have been realized had the orders not been classified.
It also works pretty damned good as something to help control nausea when you're taking chemotherapy, and there's also some anectdotal evidence it might help relieve glaucoma symptoms. This should be studied.
Understanding the scope of the problem is the first step on the path to true panic.
Isn't it interesting that on the eve of just looking at the issue, the FBI is announcing bombing plots in seemingly every major US city? It may just be coincidence, but it feels like every time the power toys of the security organs are threatened, out come leaks about 'ongoing investigations'. One would have thought a political FBI died with J Edgar Hoover, but sadly no.
Democrats enacting policies that mainly benefit trial lawyers? Color me surprised!
Well when the act was illegal at the time, and equally illegal later, then nothing has changed and that's not ex post facto. The fact that there was a brief period after the illegal act was committed where it was legal makes no difference. The telcos did not commit these acts during that period. It was not legal when they did it. It was a crime.
Very well said. I'm still not convinced that going after the telcos over this would be productive (I feel much like you stated you do later in your comment), but this argument makes me rethink my earlier statement regarding the legality of revoking immunity. I still think it's a bad idea (explored more fully in another post), but your argument has a lot of merit.
God invented whiskey so the Irish would not rule the world.