Friday, November 16, 2007

The Congress to American business: Do not help America in time of war 

The Senate Judiciary Committee has reported out a new "eavesdropping bill" -- the term assigned by the New York Times to describe the overhaul of the Foreign Intelligence Surveillance Act -- that confers no immunity on telecommunications companies that cooperated with requests for assistance from the United States government in time of war. The result is that dozens of lawsuits against those companies alleging that the telecoms damaged plaintiffs can proceed. Democrats blocked immunity because they believe that evidence to be adduced on the order of judges will reveal more details about our surveillance practices and, presumably, inflame new controversy that they can turn to partisan advantage.

Satisfying as this interim victory may be for Democrats and the media, there is a real chance that it will lead to no end of problems for the United States. Executives and directors of public companies are fiduciaries, and will no longer be able to help the United States government in time of war without a clear and enforceable indemnity that has been publicly acknowledged ex ante so that it cannot be taken away after the fact. While that would, presumably, be available for overt transactions, it effectively shuts off companies from assisting the government in covert work that might create a cause of action in American courts. How can the government grant a publicly acknowledged indemnity for secret work? How can any executive or director of a public company in good conscience assist the United States in covert activity that might give some plaintiff somewhere a cause of action?

The question is, do the Democrats who voted against immunity for the telecoms understand that this is the almost certain consequence of their vote, or are they actually trying to deter American companies from helping the United States in covert operations?


By Anonymous Anonymous, at Fri Nov 16, 09:54:00 AM:

Is this post for real? What happened to the whole rule of law thing? Law and order party? I guess that only counts when we're talking about low income brown people who tslk differently. All of the sudden, though, amnesty is a great idea for those poor corporations. You're pathetic.

I see also that you conveniently left out the fact that this program started before 9/11, so save the terrorism defense. They didn't care enough about terrorism to hold one single meeting with the task force, but they felt that breaking the law and violating the Constitution was the right way to go. Give me a break.  

By Anonymous Anonymous, at Fri Nov 16, 10:38:00 AM:

according to these far right wing extremist websites protecting the constitution is a partisan issue. i think it is sad that they have been manipulated into such a froth of fear that they are willing to surrender everything that is great about this country...because karl rove told them to. these idiots can be played like a piano.  

By Anonymous Anonymous, at Fri Nov 16, 10:44:00 AM:

I am new to this, they have been violating the Constitution? OMG how are they doing that? What specific portion of the constitution have they been violating, can you give examples?  

By Blogger Elijah, at Fri Nov 16, 10:45:00 AM:

Is the Anonymous post for real?

How many cliches and generalities can one post?

- rule of law...thing
- low income (class warfare)
- brown people (racism)
- amnesty
- corporations
- breaking the law
- violating the constition

Give us a break.

Why don't you explain Anonymous... exactly the laws that were broken or precisely the violation of the constitution?  

By Blogger tommo, at Fri Nov 16, 10:58:00 AM:

Why do you hate America? Why do you and your ilk spit on our beloved Constitution? Why do you despise our Founding Fathers?

Are you a plant of Al Quida or the Taliban? If not, why are you helping destroy our nation exactly as they would do?

You should be tried for treason.  

By Blogger TigerHawk, at Fri Nov 16, 11:04:00 AM:

It is interesting that none of the commenters who have expressed outrage at this post have actually engaged its small substantive point. Let's reask the questions in slightly more direct terms: Do you agree that the denial of immunity to telecoms will deter public companies from assisting the government in covert operations in the future (since, obviously, they will not be able to rely on the assurances of government lawyers)? If you do agree, do you think that is a good thing, or a bad thing?  

By Blogger Fritz, at Fri Nov 16, 11:24:00 AM:

I think it is a good thing. I want the officers of corporations to have to obey the law. Period. If the government has an isolated covert request now and then, then I can see that we might want a CEO to cooperate. But it's totally ridiculous to say that a company shouldn't be liable if it permits a large, systematic, and illegal wiretapping program without a law authorizing its presence. I don't want some CEO deciding that hey, actually, those checks and balances on the powers of the president? Totally optional!  

By Anonymous Anonymous, at Fri Nov 16, 11:35:00 AM:

sure - give corporations a free pass for helping the government to illegally wiretap american citzens. makes perfect sense to me. not.
y'all must be awfully scared of the boogie man from the middle east. surrender monkeys. the men and women that died to free you from tyranny must be rolling over in their graves.  

By Anonymous Anonymous, at Fri Nov 16, 11:39:00 AM:

Give me a break. The telecom companies have plenty of lawyers who could have told them that they need a little more than "assurances from government lawyers" before handing over private information. They all know that they legally need a court order, a warrent, before handing over that info. I think that you also know this, you're just cheerleading and hoping that your readers are too stupid to know the basic rights and limitations of our Constitution.

To all those readers: There's a funny thing called the fourth amendment. May be you missed it because it is a whole two amendments past the second, but it says that the goverment may not ivade into our private belongings or conversations without a court order. I'm sure the law schools that those telecom lawyers went to covered that at some point.  

By Anonymous Anonymous, at Fri Nov 16, 11:46:00 AM:

No need for businesses to help with paying for the war either. We can just pass that cost along to someone else.  

By Anonymous Anonymous, at Fri Nov 16, 11:53:00 AM:

What specific law was violated?

Read the constitution, specifically the 4th Amendment. Remember the constitution? That's that old document that Presidents swear to uphold.

What the hell happened to the Republicans? They used to support the rule of law!  

By Anonymous Anonymous, at Fri Nov 16, 12:00:00 PM:

I agree with you, Tigerhawk. This will have a chilling effect on potentially important aid to the government.

For my two cents, I think this is further evidence that people on the left just don't take the threat serously. Lord knows how many more years and what kind of terrorism we'll need before they do.  

By Blogger Elijah, at Fri Nov 16, 12:03:00 PM:

"There's a funny thing called the fourth amendment...it says that the goverment may not ivade into our private belongings...without a court order".

The TSA does not provide a court order before inviading private belongings prior to air travel.

It is easy to speak in generalities when discussing public safety vs. personal privacy.  

By Anonymous Anonymous, at Fri Nov 16, 12:09:00 PM:


By entering a secure airport area, you implicitly consent to be searched. This is also true of luggage you check. Note that there are signs around the airport that remind you of this.

You don't consent to having your conversations recorded when you use the phone. In fact, there are several laws, including FISA, that explicitly prohibit the telcos from eavesdropping on you w/o a warrant.

So there is really no comparison between a legal search at an airport, and illegal, warrantless eavesdropping on your phone calls.  

By Blogger TigerHawk, at Fri Nov 16, 12:16:00 PM:

Lost in the outrage is the point that the Democratically controlled Congress has almost entirely now legalized the actions that are the subject of the lawsuits in question (they may let the legalization expire, but that's another issue). So the only question is whether we should allow private plaintiffs to sue the telecoms for taking action that is now lawful, back when it may not have been lawful (and I use the term may advisedly, since it is more than possible that the NSA program that is the source of the controversy will survive both statutory and constitutional muster when finally reviewed by the Supreme Court).  

By Anonymous Anonymous, at Fri Nov 16, 12:16:00 PM:

"The TSA does not provide a court order before inviading private belongings prior to air travel."

Seriously? The wingnuts miss the Constitutional issue again (blinders on?). When you go to the airport, you are voluntarily subjecting yourself to a search. When your private conversations are being vacuumed up by the government, without a warrant, you are not knowingly or voluntary being searched (and conversations seized).

Can you understand that not so subtle distinction?  

By Blogger Elijah, at Fri Nov 16, 12:28:00 PM:


you write an

"illegal, warrantless eavesdropping on your phone calls".


“This more or less legalizes the N.S.A. program,” said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

"By changing the legal definition of what is considered “electronic surveillance,” the new law allows the government to eavesdrop on those conversations without warrants — latching on to those giant switches — as long as the target of the government’s surveillance is “reasonably believed” to be overseas.

For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the N.S.A.’s target is the person in London.

Bush Signs Law to Widen Reach for Wiretapping  

By Blogger Elijah, at Fri Nov 16, 12:32:00 PM:

What is a wingnut?

How many individuals have been prosecuted for this "illegal" activity?

Would you provide the links detailing the prosecutions?  

By Blogger Escort81, at Fri Nov 16, 01:33:00 PM:

More of a technical question:

Assuming I'm an officer or director of a public telecom, and the NSA or other governmental agency is asking for the help of my company, and I want to protect my company and myself from civil litigation or criminal prosecution (narrowly, with respect to the help I may render to satisfy the request), would a signed Presidential "finding" (of the sort executed for specific intelligence matters and provided to certain members of Congress) provide that protection? That is, aren't the tools in place to indemnify when necessary, without the legislation? Or is the finding tool only useful if it is used intra-government -- protecting government employees from prosecution?  

By Anonymous Anonymous, at Fri Nov 16, 01:40:00 PM:

The legislation reveals nothing about either the Dems love of civil liberties or their hatred of Bush and his anti-terrorism efforts. It simply reveals that the Dems are lapdogs of the trial lawyers, who are salivating at the prospect of big, juicy class action suits against entities (the phone companies) that everyone hates.  

By Blogger antithaca, at Fri Nov 16, 01:43:00 PM:

Yes, this post IS for real...particularly in a world where the *threat* of litigation is used to deter actions on the part of others.

Simply threatening litigation doesn't make something illegal. Nor does granting immunity to a company (at the start of a program, or after the fact) mean the program was necessarily illegal.

Unless you're a politico...and the whole "is this for real" quip is nothing more than an attempt to throw cold water on the discussion.  

By Anonymous Anonymous, at Fri Nov 16, 02:14:00 PM:

To tigerhawk, Tommo, and anyone else ho can't pay attention:

No. This won't mean companies will refuse to assist the government in the war on terror.

If there is a warrant (remember those?), the telecom companies are compelled to assist.

There goes your weak argument.


By Blogger Paradise, at Fri Nov 16, 02:38:00 PM:

Tigerhawk, of course this will deter the telecommunication companies from helping our government keep track of the terrorists. People need to get real and start fighting the terrorists the only way we can - with every weapon we have, and with every tactic we have. The government is not targeting 99.9% of Americans, rather just that 1/10 of 1% that loves the terrorists. They are welcome to listen to my phone calls anytime, if it will save just one American life.  

By Anonymous Anonymous, at Fri Nov 16, 02:43:00 PM:

You seem to be arguing that

1. The telecoms did nothing illegal AND
2. The telecoms need immunity

If what they did was perfectly legal, why would they need immunity?

This is one of the more patently obvious examples of cognitive dissonance that I've seen in a while.

Don't you people have any intellectual standards, or do you not care that your arguments are absurd on their face?  

By Anonymous Anonymous, at Fri Nov 16, 02:43:00 PM:

To Paradise:

Thankfully the Constitution exists to protect this great nation from cowards like you who will hand their civil liberties over to the first authoritarian politician who scares you into submission with the islamofacist boogie man.  

By Anonymous Anonymous, at Fri Nov 16, 02:46:00 PM:

"Do you agree that the denial of immunity to telecoms will deter public companies from assisting the government in covert operations in the future (since, obviously, they will not be able to rely on the assurances of government lawyers)?"

No. I think that the fact that justice dept. lied to those companies about the legality of the request has resulted in telecoms "not being able to rely" on the government's assessment.

Really, this is just another example of why the justice dept. should not be politicized.  

By Blogger Paradise, at Fri Nov 16, 02:49:00 PM:

Anonymous, don't start your liberal garbage with me. I will put my courage up against yours any day of the week. My brother died fighting for this country, and was awarded the Medal of Honor. I have fought long and hard for the rights of the individuals in this country, through the legal system. No one scares me, but someone sure needs to wake you up.  

By Anonymous Anonymous, at Fri Nov 16, 02:59:00 PM:

Please, Paradise, don't break out your patriotism resume on me because I don't care. You're the one who volunteered to hand over your fourth amendment rights, not me. If you want to give yours away, that's fine. Write a letter to your phone company telling them its okay. I repeat my original statement that luckily, the Constitution guarantees that you are not allowed to make that decision for me or anybody else.


By Anonymous Anonymous, at Fri Nov 16, 03:06:00 PM:

I verbally assaulted a dark skinned man yesterday, I was a true patriot and was protecting this great country. We need retroactive immunity, so when I step it up a notch next time in defense I too will be immune to our liberal justice system that prohibits my patriotism!  

By Blogger D.E. Cloutier, at Fri Nov 16, 03:08:00 PM:

To anonymous commenters:

Please type some kind of name at the bottom of your comments (like Jeff did). Show some respect for your readers. (The names of numerous cartoon characters are available.)  

By Anonymous Anonymous, at Fri Nov 16, 03:45:00 PM:

holy crap...paradise is shaking in his little boots with fear. those people from the middle east are going to come in the middle of the night and hurt him if we don't sacrifice every thing. can the constitution. toss out the treaties. bankrupt the treasury. poor 'ittle paradise is scared.  

By Blogger D.E. Cloutier, at Fri Nov 16, 03:48:00 PM:

I presume "Holy Crap" is the name you decided to use, Anonymous at 3:45 p.m.  

By Blogger davod, at Fri Nov 16, 04:00:00 PM:

Surely Bush will have to veto this?  

By Anonymous Anonymous, at Fri Nov 16, 04:02:00 PM:

Putting aside the liberal rant about warrentless searches, I thought the post was about the fact that the eavesdropping bill as modified clears the way for the telecoms to be sued. TH asked if we thought that was a good thing.

I think the answer is absolutely not. The idea of the warrentless search is not to give anyone carte blanche to "spy" on just anyone, but to covertly monitor those who have met the criteria under the rules to be monitored without broadcasting that fact or delaying the process, thru the courts. The government is not immune from the rules, but the telecom in its response or cooperation with the government should not be subject to prosecution for supplying the data.

As I understand it, this type of spying went on in prior administrations, and is not new. Hell ... I HOPE it's a widespread program.

But the idea that the USG is spying on you "Anonymous", to determine whose pole you smoke, or where you buy your herb, or whether you surf porn, or check books out of the library, or all the other "issues" raise by Lefty is just laughable. The FISA stuff does not apply or pose a threat to the privacy of 99.9% of people.

John from Jersey  

By Blogger Whiskey, at Fri Nov 16, 04:08:00 PM:

Tigerhawk -- the Lunatic Left which Congress is pandering to:

1. Does not perceive a threat to them and theirs. Only the "little Eichmans" died ... working people in the Twin Towers. They hope that another attack will succeed in killing more of the people they hate.

2. Operate from a position of perceived strength -- they think that because the media and wealthy upper class whites agree with them (Rosie O'Donnell, Sheryl Crowe) there will be no consequences politically and culturally and socially when an attack succeeds that could have been prevented by such measures.

This is Arrogance.

3. Actively wish to help AQ attack America. This measure is aimed at preventing companies from helping the government listen in on comms that end in foreign places but pass through American fiber.

4. Aim to punish / deter any action by private companies to find and expose AQ. No company will help the government -- very likely they will fight court orders because it's cheaper to do so than comply -- given the expanding legal environment that Congress created.

What this does is require a warrant and much Government coercion to eavesdrop on Osama bin Laden. A company that helps the Government eavesdrop on Osama bin Laden will be sued for everything it's worth as Congress established this guideline.

It's also a handout to trial lawyers to get more money by suing people.

Fundamentally, Dems believe the war on Jihad can be won by suing the Government. This is insane.

The anon American-hating commenters are insane. And yes of course they hate America. They put the privacy rights of terrorists, suing the telcos for trial lawyer profits, and privacy rights from the government fetishes over saving American lives.

Last year the government listened in on less than 200 individuals worldwide. This is hardly COINTELPRO. Meanwhile your anon posters and Dems could care less about Yahoo and Google selling the most private information to every comer, or turning in Chinese Democracy advocates to the Chinese Gulag.

Choices made reveal values. Bottom line: Dems and anon posters don't value American lives.

The real cost of this is when Iranian or Pakistani nukes vaporize a major American city, and the horror could have been prevented by listening in on people known to be in contact with Jihadis abroad. The solution of course will be vigilantism, since Dems in the government will have proven themselves to be incapable and unwilling to put American lives first. Every mosque will be burned down and every Muslim put in local internment camps as suspects of terror because survival and nothing less than raw physical survival will be at stake.

What would you do to survive? For most people the answer is pretty much anything. Thus the massive idiocy of Dems/Anon posters.  

By Anonymous Anonymous, at Fri Nov 16, 04:37:00 PM:

In the spirit of getting this conversation somewhere further away from a text-based pissing match, I'm going to expound on a few ideas in hopes of providing a meaningful framing.

Idea 1: Anonymity on the internet can be rather unfortunate. I will let examples speak for themselves.

Idea 2: The notion that there would be a chilling effect on cooperation with the government should telcos not get immunity is a fairly straightforward point, but disagreement might arise as to whether this point can be both straightforward and important. Certainly when one removes an incentive or adds a detriment to an action, there's a at least a trivial chilling effect under the definition as "the removal of an incentive or addition of a detriment." However, whether or not this trivial chilling effect would result in a substantive change in action is unclear, if only because the warrant-based process might accomplish almost the same set of things as the unwarranted system. This would be a worthy cause of contention in my mind.

Idea 3: Whether or not we agree on the presence of a chilling effect, we might be able to come to some sort of agreement as to whether we should be worried about a chilling effect by arguing from first principles.

I think the "safety first" argument is easily articulated by others, so I'll try to articulate the the "no immunity" side as Idea 4.

Idea 4: Even if there is a chilling effect and it is substantial, the prospect of governmental abuse of unchecked power is so worrisome as to be the most important factor. I think the historical examples for what people do when given free reign speak for themselves, see every dictatorship ever and places like China. Tacitly assuming that governmental power will be abused unless it cannot be, which some might argue is the fundamental principle of the Constitution, the question remains as to how we limit governmental power. The obvious and tested methods: transparecy in operation and limited powers. Neither of these can be applied to a secret program, which cannot be allowed to run rampant, so we shouldn't allow the program at all.

Counterargument: but what if a nuke is about to go off in NY?

Rejoinder: 1, knowing that to be true is a scenario which never, ever happens. Everything is only a vague "could be" with varying degrees of certainty, so absolute certainty can be treated as a very special case. Further, with things like proper shipping security checks, nuclear materials aren't getting in. Finally, more people than 10x as many people in the US died of Septicemia in 2004 than died in 9/11, so why terrorist attacks do kill people they aren't the most pressing or impactful cause of death by a long short. To be myopically focused on terrorism to the exclusion of everything else seems narrow minded.

Hopefully this was a little more constructive than shouting about who read which amendments.  

By Anonymous Anonymous, at Fri Nov 16, 04:52:00 PM:

I'll elaborate on the counterargument to the whole "but people will die" argument, because it was made while I was formatting my response.

Core idea: death is not the most fundamentally bad thing that can happen. The Revolutionary War, Civil War, and basically every war ever are examples of this, because they were at the very least enterprises that exchanged human lives for some other good, be it sovereignty, the union, or other. Setting aside everything else about the Civil War for a second and simplifying immensely, some people might ask themselves "Do I feel that the freedom of others from slavery is worth dying for?" and honestly answer "yes." Similarly, some people may be afraid enough of abuse of power to accept a marginal increase in their likelihood of death and loss of property. Finally, enough people might think this way that such a position becomes policy. Should this be the case, the "deaths are bad" argument doesn't accomplish the aim you might think it does. A stronger argument might be of the form "not only is terrorism a much bigger threat than statistics show, but this means of fighting terrorism isn't as overtly ripe for abuse as you think," because regardless of whether or not they are likely to be spied upon people might still take issue with the government spying.  

By Anonymous Anonymous, at Fri Nov 16, 05:41:00 PM:

Let me start by saying that if people are upset with anonymous comments, they should take it up with the site administrator, which only allows for anonymous comments or to log in under a google blogger accout.

As for the argument, please nobody else bring up the foreign-to-foreign calls routed through the US. The current bill closes that loophole, so if the pres vetoes it, he will be giving up that option in order to hold his breath about the immunity issue. So, take your anger to him on that one.

As for other points, the FISA law dealt with the issue of waiting for a warrent. You can get one after the fact, and you can get a roaming warrent. And their proceedings are secret. So, I'm not sayed by the argument that there is some sort of time issue or secrecy issue there.

As for Tory's point, there should be a chilling effect for criminal behavior. That is the point. The sad part is that the Justice dept. has beecome so partisan that it is not doing its job in puruing criminal charges, so it has to be dealt with at the civil level. That in itself is a sad statement of where we are as a country.

Also, the telecom issue is not about phone tapping, it is about the companies handing over the data for millions of people. We are not talking about a few hundred people being spied upon (BTW, I would love to see the source for that statistic), we are talking about the data for virtually every American with a phone except those of us lucky enough to have had Qwest before the CEO was retaliated upon and put in jail after refusing to cooperate.

I also don't think the issue is much more complicated than the fourth amendment. The system of checks and balances put in place by our Constitution is one of the greatest ideas in modern history. By circumventing the courts, the executive branch is operating outside its Constitutional authority. It's as simple as that. The issue of stopping to get a warrent and the secrecy have already been dealt with in the FISA act.


By Anonymous Anonymous, at Fri Nov 16, 05:43:00 PM:

Arrrrgh! With great gnashing of teeth, chorus' of wails, kicking of slats, belting of moon calfs, I stand with dropped drawers and salute you. You've been through the wringer, Pinhead! When does this wee butchery of the remaining intact sections of the Constitution take place? Certain pagan rites must be adhered to. Gutting of toads, assaulting young saplings, licking of goat gonads, etc. If need be, vestal virgins will be sacrificed. Michelle, Ann and her Adam's apple..... Nah, tainted meat, fer' sure. Well, what ever it takes to get you through this ordeal, let me know. I'll be spinning a Crow's Nest stool in your honor.  

By Blogger Elijah, at Fri Nov 16, 06:02:00 PM:

"By circumventing the courts, the executive branch is operating outside its Constitutional authority. It's as simple as that. The issue of stopping to get a warrent and the secrecy have already been dealt with in the FISA act."

Sorry, but it is not that simple Jeff.

In fact, there is a very strong argument which is exactly the opposite of the viewpoint you express.

The president’s constitutional authority is inviolable — it cannot be reduced by mere legislation. When Congress passes a statute, like FISA, that purports to reduce the president’s constitutional authority, it is Congress, not the president, that is trampling the rule of law. A president who ignores such a statute is not a law-breaker; he is a defender of the highest law. He is executing the responsibility vested in his office by the Framers who, as Alexander Hamilton observed in The Federalist No. 73, worried deeply about “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.”

As the Supreme Court explained in 1948, intelligence gathering involves “decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.” The judiciary doesn’t belong in this thicket at all. If, however, the judges are in it, their authority can go not an inch further than what Congress defined in FISA.

Who is usurping constitutional powers?  

By Blogger D.E. Cloutier, at Fri Nov 16, 06:02:00 PM:

"Let me start by saying that if people are upset with anonymous comments, they should take it up with the site administrator."

That's not the point, Jeff. The point is that when there are several people using "anonymous," it makes it difficult for readers to follow the debate. And some of the regular commenters here have said in the past that they ignore "anonymous" comments completely. If you want to talk to yourself, you don't need the Internet.  

By Blogger D.E. Cloutier, at Fri Nov 16, 06:07:00 PM:

To Tory:

Do you have a response to Whiskey_199's point about "Yahoo and Google selling the most private information to every comer, or turning in Chinese Democracy advocates to the Chinese Gulag"?

How to you feel about the information-gathering efforts of big corporations?  

By Anonymous Anonymous, at Fri Nov 16, 06:25:00 PM:

Elijah, I am amazed by the ridiculousness of your counter-argument. First: the decision regarding intelligence is referring to spying on people in other countries. We are not talking about that. And don't bring up the calls that route through the US because the current bill closes that loophole. The Supreme Court has never ruled that the executive branch may spy on US citizens in the US without judicial oversight. If they did, it would be a clear-cut violation of the 4th amendment. The FISA bill actually walks a thin line of even being Constitutional itself.

There is no inherant Constitutional authority of the President to be able to spy on citizens without judicial oversight. That is laughable. It is clearly counter to the 4th amendment.

Your argument is very similar to Nixon's when he said, "Well, if the President does it, then it is not illegal." Nobody in their right mind, let alone any Constitutional scholor would regard that argument with any level of seriousness.


By Blogger psmarc93, at Fri Nov 16, 06:46:00 PM:

The objection to warrentless wiretaps, which are illegal, is that it gives too much power to the administration with no oversight. Do you trust a President Hillary Clinton to use wiretaps? Are you sure she won't tap Republican Senators, contributors, grass roots organizations, for her or the advantage of the Democrat party? You're advocating for that power -- there is no way to make sure that she'd just be using it for anti-terrorism and you're giving her the blanket power to use it as she sees fit. Or any other Democrat president.
Or are you hoping that Bush or the next Republican President will simply declare martial law and we'll no longer have to bother with democracy, accountability to the constitution and rule of law?
By the way, Congress has not declared war so we're not officially in a state of war.  

By Anonymous Anonymous, at Fri Nov 16, 06:58:00 PM:

Well, it's clear that the inability to spy on Americans without accountability seriously detracts from our ability to fight this war. I can see only one solution. Brave citizens must step up to fill in whatever gaps are created:


If you live on the West Coast, your local recruiting office is probably still open. You can't count on the Congress to excuse telecom companies from liability for lawbreaking, but you can take on yourself the burden of making up for whatever disadvantage this causes.  

By Blogger D.E. Cloutier, at Fri Nov 16, 07:00:00 PM:

You started with a very strong argument, psmarc93. Then you descended into silliness with "Or are you hoping that Bush or the next Republican President will simply declare martial law...?"

I see that a lot on the political left. (I also see that a lot in business: People who could close a deal keep on talking until they lose the sale.)  

By Anonymous Anonymous, at Fri Nov 16, 07:02:00 PM:

Do you agree that the denial of immunity to telecoms will deter public companies from assisting the government in covert operations in the future

Absolutely. I wouldn't do anything without court orders and subpoenas. Unfortunately, we live in a litigous society and CYA will be the rule lacking a blanket immunity.  

By Blogger Elijah, at Fri Nov 16, 07:09:00 PM:

It is sad when passions overcome reason and vitriol becomes virtue.

First, the supreme court does not dictate executive powers bestowed by the constitution.

And again, where is the prosecution and conviction of the POTUS if your view is correct?

The four types of communications FISA regulates are the following:

(a) those involving a particular, known...American citizen...or permanent resident alien who is... in the United States...and has intentionally been targeted for monitoring, no matter whether the interception takes place inside or outside the United States;

(b) those involving someone... inside the United States..., even if that person has not been intentionally targeted, if the interception occurs...within the United States;

(c) those in which all parties to the communication are located ...within the United States; and

(d) those rare contacts which are neither radio nor wire communications, “in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.”  

By Blogger Elijah, at Fri Nov 16, 08:31:00 PM:

"There is no inherant Constitutional authority of the President to be able to spy on citizens without judicial oversight. That is laughable. It is clearly counter to the 4th amendment."

There's a court decision from the federal court of appeals, the FISA court of review in 2002, which acknowledges that there's unbroken legal authority, that the president has...inherent power under Article II to gather intelligence, and Congress cannot, through FISA or otherwise, displace that power or limit it.

In essence, the President can authorize surveillance that violates FISA when such surveillance “outside FISA” is reasonably necessary to respond to a genuine national security emergency. That same emergency will ordinarily bring the surveillance within the exigent circumstances doctrine of the Fourth Amendment, as modified by the special needs doctrine.
This overlap between presidential power to ignore an Act of Congress and to act free of traditional Fourth Amendment constraints is not mere coincidence. Both the separation of powers doctrine and Fourth Amendment doctrine limit
executive power but carve out an area in which the President may act free of ordinary constraints when necessary to protect the nation.  

By Anonymous Anonymous, at Fri Nov 16, 09:08:00 PM:

OK Elijah, I get it. You think that we are in the midst of a perpetual state of emergency, which allows the pres to bypass Constitutional liberties, a la Musharraf.

My question to you, then, is: How long do you see this state of emergency lasting, in which the pres can sidestep checks and balances? And, how far are you willing to go with allowing these Article II powers during this supposed "state of emergency"? What if the elections are called off, a la Musharraf?


By Blogger Elijah, at Fri Nov 16, 09:27:00 PM:

It has nothing to do with what i or you think or want, but simply the state of affairs.

Whether a democrat or republican is POTUS, the "state of emergency" as you term it will last for a while it would seem -

On October 4th, 2007 Dr. Donald M. Kerr was confirmed by the Senate by unanimous consent as Principal Deputy Director of National Intelligence (PDDNI), second in command of the Office of the Director of National Intelligence after Director Mike McConnell.

Unanimous consent.

Intelligence deputy to America: Rethink privacy

What if the elections are called off, a la Musharraf?

Some might argue this scenario as support for the 2nd amendment to the U.S. Constitution.  

By Anonymous Anonymous, at Fri Nov 16, 09:43:00 PM:

Thanks for the gibberish, Elijah. Have a good weekend.


By Anonymous Anonymous, at Fri Nov 16, 10:37:00 PM:

What if the elections are called off

Well, then you can relieve me of some big cash. I've had a standing offer for about 3 years now -- any moonbat that believes the president will suspend elections can have 10:1 odds on any amount up for $1,000.

You can put up $1,000 to win $10,000 of my green. If you really believe this will happen, then its easy money, right?

Are you ready to back your BS with some jack?  

By Blogger Whiskey, at Fri Nov 16, 11:13:00 PM:

No, Liberals are FINE with Yahoo or Google which are perceived (rightly) as "Left" corporations amassing all sorts of data about your web-surfing habits. No one is proposing regulating THAT.

Only opening up litigation floodgates to deter cooperation with anti-Terror measures.

Let me clue Liberals into what the real world is like. Ordinary people expect that government WILL do whatever is required, not hampered by PC, BDS, Multiculti nonsense, or anything else (fetishized fears of dictatorship while loudly protesting -- faux rebellion). Instead the public made clear "No More 9/11's." The President delivered which is the ONLY reason he got his behind re-elected.

Now, Dems/Libs have handed the President and Republicans a golden excuse for any failure to stop another 9/11 "plus up" attack, i.e. using Pakistani or North Korean or Iranian nukes to wipe out the government and NYC in a decapitating attack.

"We wanted to stop them, but Dems argued that American's lives were not as important as civil liberties for terrorists."

The arguments that are made here that losing a city or two is a small price to pay for civil liberties absolutism *WILL* be thrown in the face later on.

Dems/Liberals seem to be committing political suicide. In the same way they treated Crime in the 60's-70's. "Who cares if a criminal rapes and kills someone else (one of the "little people") because I as an upper class elite get to pose in moral superiority?"

It's why Dukakis lost an 18 point lead (sorry to interject the long losing history of Dem politics when they embraced elitism post 1968 and ditched the FDR-LBJ coalition). It's why Kerry lost to Bush. It's why the feckless Carter lost to Reagan.

Dems are sending a LOUD AND CLEAR SIGNAL to voters: "your lives matter less than our morality." Regardless of anything else it is bet that no mass casualty attack will ever be repeated. Because if it is -- these words, postures, votes will be used to bring about the political death of the Democratic Party.

[Which is a shame -- I'd rather two healthy parties competing around the middle for voters being kept honest. But Dems and the anon/Liberal voices here make their elitism/moralism over a duty to save American lives clear.]  

By Anonymous Anonymous, at Fri Nov 16, 11:47:00 PM:

To Purple Avenger:
I am not predicting that Bush will cancel the elections, I was merely asking Elijah if that would be ok with him, since he is comfortable with granting Bush those Article II powers. The same question could be posed to you and to whiskey. How far is too far for those powers in this supposed "state of emergency"? At what point are you not comfortable with unchecked executive power?

To whiskey: The same statement I made to Paradise applies to you. I am glad that the Constitution prevents people like you from handing over our civil liberties to an authoritarian executive because they scared you with the islamofacist boogie man. Just listen to yourself and your wide eyed predictions. Whole cities being blown up, decapitating attacks from North Korea. And the notion of Bush suspending elections is far fetched. I'm sure you've heard the quote from Ben Franklin, "Those who would give up freedom for security deserves neither." I think that fits you rather well. Good thing he was around when they wrote the Constitution and put in all those checks and balances to prevent a takeover by the executive. But, of course, they did not have to deal with such scary terrorism. It's not like the country was invaded by the greatest military in the world right before they wrote the thing.

You see, the Constitution protects us from power grabs and invasions of our civil liberties. We are currently in a Constitutional crisis because the administration scared people like you into believing that we are in some never ending state of emergency. But, thankfully, the country is finally sick and tired of those fools trying to scare them all the time. You can flap around all you want screeching that NYC is going to go up in a mushroom cloud, but the rest of us just aren't buying what you're selling, and we are going to move on without you, correcting what was done these last 8 years and ensuring that something like it never happens again.

By the way, whiskey, what great things besides spying on us has Bush done to protect us from this great attack? Has he captured bin Laden? Has he worked to reduce global terrorist attacks? Has he reduced the number of terrorist new recruits? Has he prevented NK from making nukes? Has he worked to secure ANY nukes from the former Soviet Union? Has he protected our borders, chemical plants, nuclear plants, infrastructure, borders? Has he ensured that all containers, ports, and cargo planes are inspected? He has done none of this. But his wiretapping is protecting us all from nuclear holocaust. What a joke.


By Blogger amr, at Fri Nov 16, 11:56:00 PM:

Of course this will cause American companies to have second thoughts about assisting the US government in any such future endeavor. 35 years ago I backed out of possibly testifying before congress about military morale because I was applying for a government certification and President Nixon had his enemies list. I was small fry but I worried about the trickle down aspect of an enemies list. So I understand why companies might forego placing themselves in jeopardy. They might win a case, but the PR problems combined with possible economic losses and absorbent attorney fees could be considered to be prohibitive while the class action suit may be pro bono and will be supported in the media.

Also the NSA program was reportedly looking at calls to the US by and from the US to suspected terrorists and FISA didn’t cover such surveillance, especially the Internet communications. The ECHELON program of intercepting foreign communications had been ongoing for reportedly 60 years and this was an extension of it. I do realize that the revealed intent of the program may have been skirted and US citizens spied upon as the CIA did in the 1960’s and 70’s before the Church Committee hearings revealed it, however I have yet to hear/read about an innocent US citizen caught up in this net unless it was the American picked up in Spain after the Madrid train terrorist attack. Supposedly he was fingered by US intelligence info.

I do not want us to repeat what happened after the Church committee hearings which over 2 decades progressed to Commissioner Gorelick’s intelligence wall and Senator Torricelli’s amendment on CIA informants which unfortunately and inadvertently assisted al Qaeda in their efforts to secretly arrange their 9/11 attacks.

Also let us not forget that the intelligence committees and leadership of both parties in both houses of congress were informed of the programs and had oversight responsibilities. And not until the NYT reported on the program did anyone in the halls of congress reportedly complain about it. If the NSA intercept program was so bad, the constitutional Speech or Debate Clause found in Article I, Section 6, Clause 1 should have protected them if the program was illegal.

As Supreme Court Justice Robert H. Jackson wrote in his dissenting opinion in Terminiello v. Chicago in 1949, the Constitution is not a suicide pact. And I for one do not intend to join one.  

By Anonymous Anonymous, at Sat Nov 17, 12:58:00 AM:

When it comes to voting themselves a pay raise or voting to blow our tax money on some pork project the demacraps dont ever heitate but when it come to fund a battle against terrorists they will cut you off every time IMPEACH EVERY DARN ONE OF THEM SQUAWK SQUAWK  

By Blogger niall, at Sat Nov 17, 09:55:00 AM:

Pet peeve of someone who works in the telecom industry (all standard disclaimers apply):

The program referenced was not "eaves-dropping", it was reviewing call detail records (calling/called phone numbers, duration of call etc). In short, the content of the conversation was not recorded or observed. The use of the word eaves-dropping in this case is at best reflective of ignorance. That is not to say the program isn't in violation of some law(s) but the discussion is not advanced by misrepresenting the activity involved.  

By Anonymous Anonymous, at Sat Nov 17, 11:22:00 PM:

Concerning the data-collection by yahoo, google, and according to rumors facebook: objection to something while not objecting to some other thing isn't necessarily a certification that the other thing is ok, particularly in the realm of policy, and most definitely not when I am making claims of some kind. The issues that are truly substantive at a national level are so intricate and convoluted that to try and address all interlacing issues at once would be intellectually suicidal, so I try to scope issues to one thing at a time.

Dealing with the private-enterprise question because I have been asked, I do indeed have a problem with it, which might be thought of as a subset of my problems with End User License Agreements in modern life. In order to survive in our litigious society, companies are required to patch together massive CYA agreements for most software or goods/service-exchange online, and these agreements tend to assume much more ground than is strictly necessary because tailoring such a document costs money. This is a totally understandable motive from the perspective of the company trying not to hemorrhage cash to law firms, but it does pose a problem in that companies can get away with lots of things. Further, the prevalence of such documentation has reached nigh-epic levels, to the point where a rigorous reading of all the relevant documentation would cause one to never accomplish anything outside of reading. For this reason, such documentation goes unread, and this leads to all the usual problems involving unread contracts, including the inadvertent agreement to allow information sale.

I would be in favor of legislation to limit the capacity to sell private information unless clients specifically opt-in to a clearly separate yes-you-may-sell-my-data scheme. The capacity for traffic monitoring on the internet is so vast as to relatively easily allow for collection of material people would usually want non-public, and in the interest of a society where people can regulate the availability of facts about themselves I would favor limiting the revenue streams of some companies. I could make arguments as to why I think this conception of society is better than one where companies make the status quo cash, but for now lets call it a personal preference.  

By Anonymous Anonymous, at Sun Nov 18, 09:21:00 AM:

For my two cents, I think this is further evidence that people on the left just don't take the threat serously. <<<<<<<< Of course we progressives aren't frightened by men from the middle east with box cutters. We stood toe to toe with Russia when they had thousands of nuclear warheads aimed at our cities with actual delivery methods. we got through that without giving up or privacy, civil liberties or shredding the constitution. what is it about you wingers that makes you so frightened of everything. If you don't love our country and its constitution why don't you to a nice authoritarian country where you'd likely be happier. Chile or Panama or Saudi Arabia comes to mind.  

By Blogger D.E. Cloutier, at Sun Nov 18, 01:13:00 PM:

Tory, thank you for responding to my question.  

By Blogger Elijah, at Sun Nov 18, 02:34:00 PM:

"Of course we progressives aren't frightened by men from the middle east with box cutters. We stood toe to toe with Russia when they had thousands of nuclear warheads aimed at our cities with actual delivery methods. we got through that without giving up or privacy, civil liberties or shredding the constitution."

"Of course we progressives aren't frightened by men from the middle east with box cutters."

What exactly is the message you are trying to convey with this sentence BillT?

That progressives are inherently brave? Or, that middle eastern men should not be feared because they are not intelligent enough to utilize a weapon beside box cutters?

It seems that progressive leaders stated a great deal of fear for a middle eastern man from Iraq.

Are you lying now, or are they lying then

Did this middle eastern man only possess box cutters, why are progressive leaders overstating capabilities?

Are they lying or you?...you stated that progressives have no fear.
"We stood toe to toe with Russia when they had thousands of nuclear warheads aimed at our cities with actual delivery methods."

U.S. progressives battled with the former Soviet Union?

Can you elaborate on the exact methodolgy...was it information, financial, psychological, or actual physical warfare?

Are progressives currently battling Putin and Russia?

Russia has thousands of nuclear weapons as you write.

Why then, could they not easily defeat middle eastern men with box-cutters participating in the conflicts of Afghanistan or Chechnya?

By the way, by siding with the U.S. against Russia, should readers assume that you are not a transnational progressive?
"without giving up or privacy, civil liberties or shredding the constitution".

It is a shame that the democratically controlled Senate and House are conspiring...if your view is accuarate.

Again, why don't you explain Bill T...exactly the laws that were broken or precisely the violation of the constitution?  

By Anonymous Anonymous, at Sun Nov 18, 11:49:00 PM:

don't be aggressively dense. Anyone with an IQ larger than their dog could easily understand the point that your wingers have tried to hogtie this country with fear because 19 most Saudi young men with box cutters managed to crash some planes, while in the very recent past this same country didn't freak out and succumb to irrational fear even when faced with thousands of nuclear missiles. We negotiated, we pushed back hard, we worked things out. Not hard for most folks to understand.

your rapier like wit in listing items 1. and 2. make no sense whatsoever are unworthy of a response They fail to engage any vestige of my post.

lastly, If you need explanation of specifically which laws have been repeatedly broken for 6+ years of bush and his admin authorizing illegal warrantless wiretapping (and now were finding out it happened pre-911 as well) -- actually I don't believe you need explanation of the specific laws that have been broken. I'm sure you are merely being disingenuous to obfuscate and deflect...badly.  

By Blogger Georg Felis, at Mon Nov 19, 01:56:00 PM:

Billt, you are showing exactly what is wrong with the mindset of the average liberal. You start out with a personal attack, downplay the threat of radical Islam as “19 most Saudi young men with box cutters”, complain that the existing shooting war with the same radicals is just freaking out and irrational fear, and complain that we are not negotiating with these people instead of confronting them as we are.

I sincerely doubt that there were any laws broken by the Bush administration in their treatment of international phone call monitoring, because if there were, Speaker Pelosi would have started Impeachment long ago. No rational and knowledgeable individual disputes the Executive branch’s authority to conduct foreign surveillance, including communication between agents of hostile foreign powers during a period of conflict and their agents within our borders. But then again we are speaking of Democrats.  

By Anonymous Anonymous, at Tue Nov 20, 10:15:00 AM:

"Democrats blocked immunity because they believe that evidence to be adduced on the order of judges will reveal more details about our surveillance practices and, presumably, inflame new controversy that they can turn to partisan advantage." I don't know about partisan advantage - I do know that even in the most badly run corporation (which is the model so often touted by this administration) there is oversight and accountability. That is what has been so sorely lacking for the last 6 years. I feel no sympathy for the poor telcos - as another poster pointed out, these companies all have very highly paid attorneys to point out what is and is not legal for them to do. Nowhere in the Constitution does it state anything about along the lines of the Nixon statement "when the president does it, it is not illegal". It's funny to me that so many of the posts on here defend this behaviour.  

By Anonymous Anonymous, at Tue Nov 20, 11:05:00 AM:

georgefelis, sincerely doubting is not adherence to facts. Every time mr bush wiretapped without using the FISA court to obtain a warrant was in direct violation of the law. Period. This is a fact he admitted to doing, though he couched it in "necessary to protect against the terrorist threat."Still doesn't make it NOT a violation of the law.

You'll notice my original post was about how this so called threat is minimal compared to what we've faced down as a nation in the past. For that Elijah called me a liar. If suggesting that his answer was obtuse, unorganized and unoriginal was disingenuous is a personal attack, than so be it.  

By Blogger Elijah, at Tue Nov 20, 01:23:00 PM:

Thanks to everyone for the discussion, it was enjoyable.

"my original post was about how this so called threat...is minimal...compared to what we've faced down as a nation in the past."

The above is a personal opinion, stated as a fact.

"America is now threatened less by conquering states than we are by failing ones.”

That was the conclusion of the 2002U.S. National Security Strategy. For a country whose foreign policy in the 20th century was dominated by the struggles against powerful states such as Germany, Japan, and the Soviet Union, the U.S. assessment is striking.

Nor is the United States alone in diagnosing the problem.

U.N. Secretary General Kofi Annan has warned that -

“ignoring failed states creates problems that sometimes come back to bite us.”

French President Jacques Chirac has spoken of -

“the threat that failed states carry for the world’s equilibrium.”

World leaders once worried about who was amassing power; now they worry about the absence of it.

Failed states have made a remarkable odyssey from the periphery to the very center of global politics. During the Cold War, state failure was seen through the prism of superpower conflict and was rarely addressed as a danger in its own right. In the 1990s, “failed states” fell largely into the province of humanitarians and human rights activists, although they did begin to consume the attention of the world’s sole superpower, which led interventions in Somalia, Haiti, Bosnia, Kosovo, and Afghanistan.

"For that Elijah called me a liar"

Actually, 2 questions were posed:

- Are you lying now, or are they lying then?
-Are they lying or you?

There is a difference between a statement and questions.

"Still doesn't make it NOT a violation of the law."
Again, as the Supreme Court explained in 1948, intelligence gathering involves “decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”

Again, there's a court decision from the federal court of appeals, the FISA court of review in 2002, which acknowledges that the president has..."inherent power under Article II to gather intelligence, and Congress cannot, through FISA or otherwise, displace that power or limit it".

Domestic Surveillance for International
Terrorists: Presidential Power and
Fourth Amendment Limits

Again, exactly what laws were broken, how was the Constitution violated?  

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