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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!
http://yro.slashdot.org/story/09/09/18/1913248/New-JUSTICE-Act-Could-Roll-Back-Telecom-Immunity?art_pos=2
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.
Impossible. The telecomms, of all people, should have known that unwarranted wiretaps have been held as unconstitutional by the judicial branch for years. It's a violation of the 4th amendment. Since the patriot act wasn't a constitutional amendment, it cannot override the 4th amendment.
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.
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).
Bollock!
It was unconstitutional and illegal, until they passed a law to make it retroactively legal. They knew where they were going, they should pay the price.
ID: the nose did not occur naturally, how would we wear glasses otherwise? (apologies to Voltaire)
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.
You don't get it. The US doesn't have to actually do anything to Iran. Israel is sitting there waiting for ANY excuse to bomb them. All the US has to do is let go of their leash and let them act.
Also, this is politics. Every word that he says is recorded and analyzed by probably every country. Everything he says has to be ultra-polite and not cause any offense to anyone. That IS strong language for a politician, and the Iranians will realize that.
To put it in perspective... Most people know at least one person who is very reserved and careful about everything they say. They never make outburst and never curse. But, if this person does have an outburst, even saying something like "Oh crap!", everyone who knows them becomes nervous. You can't look at language directly with politicians. It is how it deviates from their usual language that is important.
So people should be put in jail or fined for following a law that has not yet been found to be unconstitutional? Do you understand the anarchy that would result from that stand?
God invented whiskey so the Irish would not rule the world.
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.
"The actions the telecoms took were legal under the PATRIOT act."
Oh really? Then why did the government pass a law which granted them retroactive immunity for their actions? You don't need immunity if you didn't do anything wrong. There was nothing in the Patriot Act which authorized telecom companies to violate the privacy of their customers. That's the central point in the civil suits against them. Ex-post-facto law is indeed unconstitutional, which is why the telecom companies can't legally be given immunity for their previous offenses.
Furthermore, the law of the land applicable to wiretapping at that time was the original FISA law, not the Patriot Act. The FISA law clearly and unambiguously makes it a CRIME for any U.S. government employee to engage in domestic surveillance without a warrant. The Bush administration and the intelligence agencies flagrantly violated this law. Why do you think it was referred to as "warrantless wiretapping"? This was clearly an impeachable offense, and if the Democrats were any less corrupt than the Republicans, anyone invovled in this activity (Bush and Cheney included) would be charged with the applicable crimes in the FISA law.
Part of this whole "retroactive immunity" deal for the telecom companies was to make sure that no civil or criminal cases ever came into court. If there were actually a trial, it could potentially unearth evidence of massive criminal activity on the part of intelligence agencies. It took a very long time for government abuses in the Johnson and Nixon years to come to light. We can only hope that the full extent of the illegal wiretapping in the Bush years is eventually exposed.
Actually, it's an unsettled legal question whether what the telecoms did was legal, because the immunity that was part of the Patriot Act renewal, not the original Patriot Act, applying retroactively to the period between Patriot I and Patriot II. That immunity was put in place specifically to stop cases by the ACLU and similar organizations from going forward (which would have settled the question as to the legality of the telecom's actions).
So this isn't exactly a case of "A was legal, now it's not", it's more a case of "A may not be legal, and we said we weren't going to do anything about it, but we've changed our minds", which isn't the same thing.
I am officially gone from
Actually, no, you are completely wrong.
Not all searches require a warrant and not all wiretaps require a warrant. This has been and is upheld by the courts. It's not a violation of the 4th amendment either.
Now, the courts and congress, since the very first session, has maintained that the right of sovereignty and the protection of that sovereignty makes searches at the borders and communications entering the country reasonable search under the 4th amendment. This is laws made by the very same founding fathers who wrote the constitution in the first place. I believe their interpretation of the 4th to be more legitimate then yours.
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
Who, the government or the telecoms?
It wouldn't matter if your talking about the telecoms. They always had immunity from prosecution if the government presents them with legitimate looking documentation. And before you spout that only a warrant is legitimate, you need to take a deep breath and look at the laws concerning searches and wiretaps and you will find that position has never been taken and searches/wiretaps without warrants have been upheld as constitutional by the supreme court.
The reason the immunity law was needed is because the TSP orders are classified as national security secrets and disclosing the contents of them is a felony carrying 5 years in imprisonment to life and possibly the death penalty. The telecoms always had immunity, they just didn't have a way to get it when the vindicating information is a national security secret. All the immunity law accomplishes is a secret court that reviews claims, checks their validity and their necessity to remain secret then instructs the court holding the action to either proceed or end the case and prevent it from being brought again. In short, the court of review does nothing more then determine is the existing immunity would apply and then make sure it does if it's true.
No, I'm saying the Telecoms should have been the ones to raise the question of constitutionality. But, that would cost more money than protecting the interest of their customers.
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.
The article you linked deals strictly with gathering intelligence on US citizens foreign communications. That's perfectly legal. And again you mention searches at the borders which again is outside the 4th amendment. The EFF lawsuit against AT&T has nothing to do with foreign traffic or boarder searching. The EFF is asserting that the government was tapping into ALL connections passing through AT&T. That clearly falls under the protection of the 4th amendment.
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.
Actually, title 18 2520 d gave the telecoms a complete defense against all criminal and civil actions. The problem is that the documentation needed to support this complete defense was classified as a national security secret meaning that disclosure of any of the information would result in a felony containing 5 years to life in prison with the possibility of the death penalty. The immunity law does nothing but provide a vehicle in which the claimed documentation can be verified without placing the telecoms in violation of this felony or disclosing national security secrets.
Just because you do not understand something, doesn't make it the way you want it to be.
Yes, it was a crime. However, because the telecoms (and a number of other people including landlords and so on) are required by law to assist the government as ling as certain documentation is presented, those specific people are absolved from their actions in the crime. It's like a law that says you can't jaywalk being used against you when you run in the middle of the street to save the life of a toddler who wondered into traffic. OF course I'm not attempting to claim the telecoms saved any lives, I'm saying that a higher authority forced them to participate on something that was illegal (in this case the law was the higher authority) and under the facts of the situation, they can't be sued or prosecuted.
Now you can make this as partisan as you want. The fact is that the house and senate intelligence committees as well as their leaderships were completely in the loop on this and received regular reports concerning the TSP operation. Both parties were involved, both parties knew about it, and it didn't become partisan until it was convenient for an election.
Wrong, wrong, wrong. The "retroactive immunity" which isn't retroactive was put in place in order to allow the telecoms experience the complete defense they already had without disclosing national security secrets. Now you can argue that the documents were classified as national security secrets in order to do as you claimed. I do remember certain groups claiming the reason they were suing was to get information about the government. But that information was held back long before any immunity was around and the Bush administration actually went to court a
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.
If you look at the provisions of the immunity portion, you will see that it does 3 things. It creates a court of review that the telecoms can present the orders the government gave them, it validates these warrants by interrogating the agencies who issued them, and finally, it required those agencies to justify keeping the orders classified. Only if all three of those are met, does the court of review instruct the court holding the actions against the telecoms to drop the case and prevent it from being held in any other court.
Now on the surface, you may look at that and think it's completely retroactive. But lets ask a few questions here. One, why is an order or warrant required in order to get the immunity? Two, why must the agency who issued the warrant claim the information needs to remain classified.
The answer to that is because under existing laws, the telecoms already have a complete defense against any criminal or civil action if the government presented them with a document prescribed by law claiming they had a legal right to the information/wiretap. The problem they face is that the administration classified all of the orders as national security secrets and disclosing any information about them is a felony that could result in 5 years to life and possible the death penalty. The immunity is little more then a vehicle for the telecoms to realize the complete defense they already had.
There is no blanket immunity in the telecom immunity provisions from before the enactment of the law. All of the previous immunity is only realized when the telecoms would have already had immunity and the documents are classified making disclosing them impossible. If the document doesn't exist, no immunity happens. If the document is no longer classified, it's given to the telecoms with the instructions to present it as their complete defense under existing law.
Now your right, it's not a case of "A was legal, now it's not". It's also not a case of "A may not be legal, and we said we weren't going to do anything about it, but we've changed our minds". It's a case of "even if this was illegal, because the law forces you to assist the government when presented with certain documentation, you cannot be held liable to those actions". The immunity provisions in the patriot is nothing more then allowing the legal use of the existing immunity that was present before the passage of the act but impossible to realize without committing felonies and possible endangering national security.
The "unsettled legal question whether what the telecoms did was legal" is irrelevant for the purpose of the immunity law because we have said explicitly through existing law that because they are forced to assist when certain documentation is presented, they can't be held accountable for any actions resulting from that assistance. IT may very well be that what they did was highly illegal, but they still enjoy a complete defense.
Stop trying so hard to be so wrong.
The EFF suit was about ATT's cooperation with the NSA on taping Americans. The NSA has always stated that they only taped Americans who were on international calls with one party being suspected of being a spy or terrorist. There has never been anyone competently close to the NSA actions who have claimed otherwise and that includes democrats and republicans in the house and senate who were kept completely informed about the TSP from the start.
Now I'm going to mention FISA in which is always had allows taps and searches within the US borders and it has always defined US persons to be US people other then those working for/with foreign agents and government. So even FISA allows US citizens to be tapped within the US and FISA was specifically created because domestic law enforcement agents were attempting to bypass warrant requirements by using national security exemptions to wire tap their suspects.
Now, did you actually read the article I linked to? I mean it says "The three-judge court, which hears rare appeals from the full Foreign Intelligence Surveillance Court, addressed provisions of the Protect America Act, passed by Congress in 2007 amid the controversy over Mr. Bush's program of wiretapping without warrants. It found that the administration had put in place sufficient privacy safeguards to meet the constitutional standards of the Fourth Amendment's ban on unreasonable searches. Because of that, the company had to cooperate, the court said."
I was agreeing that the 4th amendment doesn't cover people working with foreign parties. But only with regard to their activities with said parties. And yes, I read your article. You clearly did not read the EFF page I linked for you. Let me quote it for you:
The Electronic Frontier Foundation (EFF) filed a class-action lawsuit against AT&T on January 31, 2006, accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive, illegal program to wiretap and data-mine Americans' communications. [emphasis mine]
If the telecomms only honored FISA granted warrants they would NOT need immunity. If they were really safeguards in place that prevent violation of the 4th ammendment then they do not need immunity either. They only need immunity if what they were doing was illegal and congress was trying to protect them post facto. I think that should be obvious to anyone.
That's why they have appeals courts, and the Supreme Court, to rule on the constitutionality of laws. Problem is, the SCOTUS can refuse to hear a case, and once they get seated, you can't get rid of a SC judge til they die or step down and retire.
Understanding the scope of the problem is the first step on the path to true panic.
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.
ok, first of all, the EFF is not a legal authority so their claim of illegal has yet to be determined. Second, the EFF was going after the rerouting of the communications lines through central locations and the storage of numbers which to date is completely legal under the 1994 Communications Assistance for Law Enforcement Act (CALEA) as long as the government doesn't access it without proper justification. Finally, the EFF really has no idea of the scope and breadth of the secrete program- it's a fucking secret. Their initial lawsuit was an attempt to gain more information about it and their major claim is that it enables illegal activity or activity they claim is illegal. They have no proof that anything is illegal because despite any of their claims, the validity of them has yet to be adjudicated.
That being said, there is nothing to show that the scope of what the EFF is claiming is not in line with the courts rendition of allowable or reasonable warrant-less searches. The one article claims a court actually said they were constitutional because of measures taken to prevent abuse. Further more, the ACLU just lost their suit in which the court said their claims are that the violation is probable, not that it happened.
Furthermore, according to FISA, US persons can be US citizens.
Are you suggesting that the telecoms ignore the FISA law where it says that the president can through the attorney general, order a wiretap for up to one year under certain conditions? Or is your entire "only honored FISA granted warrants" inclusive of this legal warrant-less wiretap?
The problem is, they didn't use warrants, they used the orders as the FISA law allows. In this problem, a subject of the warrants were people that should have never been. The reason they need the immunity is because they are compelled by law to assist in the wire taps if they are presented certain documentation. This documentation includes FISA wiretap orders with absolutely no warrants at all. Now they have always had this immunity in title 18 section 2520 (d) that says if they were given the certain papers, it would be a complete defense against all criminal or civil actions. But wait, there is a problem here, the telecoms cannot present this documentation because they have been classified as national security secrets and disclosing them or anything on them would create a felony violation carrying 5 to life in prison and possably the death penalty.
Here enters the protect America act and the immunity clauses there. The immunity clause doesn't give blanket immunity for any and all actions that happened after 9/11. Instead, it creates a court of review, when a telecom is sued, they bring the documents to the court of reviews attention, they validate it with the AG or whoever authorized it, and then asks if it's still needs to be classified. Only then will the telecoms get the immunity. The new law is nothing more then a vehicle for the people who are legally compelled to assist the government in wiretaps and searches the complete defense promised in other laws.
Not just complicated, but impossible. You can't pass laws that retroactively revoke immunity. The immunity for acts committed up until the enactment of any law that removes the immunity cannot be revoked.
The most they could do is make it so that any future acts are not covered by immunity.
There isn't even any room to wiggle on this point, it is a simple fact of US Constitutional law.
I agree with your sentiment, but shy away from words like 'impossible' where politics is concerned. Who would have guessed that the cops in the Rodney King incident would keep getting tried until they were convicted? I'm also not sure the simple facts in the constitution are read so simply. Apparently the 4th amendment discusses abortion. The 2nd covers only certain types of arms. And who knew the commerce clause was so broad?