Ask your senator to vote against HR 6304 (right now please. thanx)

[netmouse]

To quote Novapsyche's post, there is still time to call your Senators regarding the capitulation on FISA (aka, the evisceration of the 4th Amendment).

The bill is H.R. 6304 and i have seen it described as a confirmation of the legal king model of government since it basically protects people (in this case, telecommunication companies) from being prosecuted for illegal activities because the president asked them to do them.

I would prefer to live in a country where presidential fiat does not make it ok for people to break the law, especially regarding the privacy of citizens, and in order for that to be true, we need to defeat this bill. please call your senator now.

Comments

[novapsyche.livejournal.com]

The problem with this bill is manifold.

First of all, it legalizes retroactively the illegal actions of the government that have been taking place for at least the last three years. Mr. Bush has admitted to breaking the law at least thirty times. The Congress, if it passes this bill, is colluding in a cover-up of thirty instances of a felony.

Second, if the telecoms are given protection against civil suits, there is very little chance that the American people will get a full accounting of exactly what they did on the government's behalf. The depth of the wrongdoing may never be known.

Third, because the bill goes above and beyond the previous bill granting the president these powers, it effectively allows the government to spy on its citizens without any court oversight and without any redress by the common citizen. It specifically guts the main protections afforded by the 4th Amendment.

[novapsyche.livejournal.com]

Consider also that the Senators are being asked to vote on this bill despite the fact that 70% of them have yet to be briefed on the very issue that the bill concerns. (See Russ Feingold's statements to the Senate this morning.)

I know that DailyKos is a biased source, but this diary references an interview with Jonathan Turley yesterday, wherein he describes in very sober detail what this bill means for the nation.

Another diary highlights some of the more egregious wording of the bill.

[arkaycee.livejournal.com]

From the second link...

• H.R.6304 contains an "exigent" circumstance loophole that thwarts the prior judicial review requirement. The bill permits the government to start a spying program and wait to go to court for up to 7 days every time "intelligence important to the national security of the US may be lost or not timely acquired." By definition, court applications take time and will delay the collection of information. It is highly unlikely there is a situation where this exception doesn’t swallow the rule.

This concept and its corollaries (i.e. that too much time will be lost because the FISA court will be slow to act) was totally repudiated by the FISA court's most recent past head. I heard him speaking to the American Library Association on NPR about a year ago, and he said that it was a very speedy thing when it needed to be -- he was stuck in traffic caused by the smoke of the burning Pentagon on 9/11 and said he had already approved a half-dozen warrants from his car dealing with the attacks before he even got free of the traffic jam. He was very clear in stating that this was a bogus assertion to the need for the warrantless program.

[netmouse.livejournal.com]

The key is holding individuals responsible for acting legally despite what members of the government tell them to do, if they know the government is asking them to do something illegal.

This is similar to how a soldier is expected and encouraged to refuse to execute an oder that is illegal.

Just because a person is in a position of power doesn't mean they can do anything, or order others to do anything. It is more important to me that companies operate in good faith with the people and the laws of this country that that they do so with a particular (in this case despicable) holder of office within the government.

This is necessary to prevent thugs in government from creating their own private armies who will act illegally under the reassurance that they will never be prosecuted for doing so. People ought to follow the law, and they ought to be prosecutable if they do not. Those companies broke faith with their customers, and with the laws of this country, as those laws were duly established by our government. They did not act in good faith with the majority of government that established and upholds those laws, only with a small contingent that chose to disregard them.

Why does it make sense to you that they should be protected because someone in government asked them to do it? If the president asked someone to torture and assassinate US citizens, do you think those who executed such illegal acts should be given immunity because of who asked them to do it? Or does this crime seem more forgivable because it is an information and surveillance crime? Does it not majorly impact our freedom and honesty as a nation if we look the other way on crimes such as these?

[ckd]

You might look at this explanation. A key point:

As has been pointed out by others, the law prohibits the telephone companies from giving information to the government. Therefore, it is ridiculous for them to say, “but the government asked us for it.” These are gigantic corporations with legal departments. They should bloody well know when the government is lying to them about what is and isn’t legal. Similarly, if in the future the government makes a request that actually is legal, the fact that the phone companies can be punished for breaking the law shouldn't make them unwilling to obey the law. We don't worry that putting bank robbers in jail could discourage law-abiding citizens from withdrawing their money from the bank.

At a minimum, the lawsuits need to proceed so we can use the trials to determine the details of what happened, of how egregious the violations of FISA actually were, how many thousands or millions of us were spied upon. And if there really is a signed piece of paper out there from the Administration assuring the phone companies that its request was legal, then the phone companies can countersue the government to recover their damages. (Google “detrimental reliance.”)

(Emphasis added.)

The phone companies, therefore, have recourse. For civil suits, detrimental reliance (as noted above); for criminal cases, Presidential pardons. There's no reason that immunity has to be the solution, except to keep information from coming out during the ensuing cases; the obvious reason that's so important is that they think it would lead to criminal cases against the government personnel responsible—in which case, it's critically important not to let retroactive immunity go into effect, shielding them from the consequences of illegal actions.

[cos]

First one key point seems to be on the issue of did the companies realize they were violating the law.

Not really. That is a point to be argued in court, where guilt is supposed to be determined. It is not something that is appropriate for Congress to decide.

Cases go to court all the time where defendants claim they didn't realize they were violating the law. Do you think that Congress should look at such cases, decide whether it believes the defendants, and if so, pass a bill saying that action wasn't actually illegal? Imagine what that would do for the concept of "rule of law".

Also remember that ignorance of the law is, in and of itself, not an excuse (though it can be a mitigating factor). Furthermore, in this case, I think it's very obvious that the telecom companies a) had a duty to know that this was illegal, b) had legal departments who could pretty easily determine that this was illegal, and therefore c) probably did realize it was illegal.

[cos]

You're possibly right that Congress has the legal power to do this. It's not clear whether their declaration of amnesty really will immunize the phone companies, but it's likely enough that we're fighting against it. That's the whole point here, of course: If Congress clearly didn't have the power to retroactively give amnesty for lawbreaking, then this wouldn't be an important issue to lobby about.

So, grant that Congress is allowed to do this (aka this is "part of its duties").

Now, think about the effects. Remember what happened with Nixon. FISA was a response to the Nixon scandals. It placed a duty on phone companies not to comply with illegal request for information from the government, because the Church commission understood that without that, it would be very hard to enforce the law, since on the government side everything is secret, and it's hard to sue or prosecute anyone.

So imagine you're a phone company with a legal department that understands the FISA law, and the government comes asking you for information that you know you're not legally allowed to give them. For example, you're AT&T and the government asks you to build a special secret room where all of your data gets routed through and a copy is sent to the NSA. Obviously outside the law, and there's clearly no warrant from the FISA court, but they're the executive branch and they're pressuring you to do it. Do you comply?

If you know that if it ever gets found out, you're in for some serious liability, then you're much more likely to resist their pressure to break the law. That's what FISA was trying to accomplish.

But if this bill passes, that calculation changes. You understand that there are consequences for resisting the government (Qwest was punished for their refusal to collude). You also understand that the executive branch run amok will also be able to pressure Congress into immunizing you if this ever goes public, so there likely won't be any serious consequences. That means you're probably better off obeying government officials, than obeying the law.

That is the very definition of the difference between monarchy/dictatorship and "the rule of law".

[arkaycee.livejournal.com]

Regarding the Presidential Pardon; I don't know if it's amendable by Congress, but it's a lot better politically for the President if he can convince Congress to do it so he doesn't have to.

I'm expecting a big likelihood though that W's last day in office is going to include a lot of pardoning. I'm wondering if some of the higher-ups will get the Ford-to-Nixon type pardon wherein they've not really been tried and found guilty yet, but more of a blanket "get-out-of-jail-for-whatever-you-did" card.

[cos]

The telecommunications companies broke the law. Qwest was the only big one who did not break the law, but all of them have legal departments part of whose job it is to tell the difference between legal and illegal requests for information, and these requests were very obviously, screamingly obviously, illegal.

Now, if the phone companies were actually acting in "good faith" and couldn't figure it out and thought what they were doing were legal, then they could defend themselves in court. It's the courts' job to determine that sort of thing, not Congress.

When the Church commission drafted the original FISA legislation, they understood that the problem wasn't just limited to the executive branch of government - it was also part of the problem that telephone companies would cooperate with such illegal requests. Therefore, they made the law explicitly address that. Telecom companies have an explicit duty under the law to refuse to comply with illegal requests for information from the government.

They broke the law. When someone is suspected of breaking the law, we have courts to handle determining their guilt and proper punishment.

For Congress to step in and try to cancel it out and excuse the lawbreaking is extremely dangerous. It means that FISA's requirements, placing a legal duty on telecom companies to take customers' privacy seriously, will no longer be as meaningful, because the precedent will be that if you break this law, the president will then successfully get Congress to excuse you anyway.

In other words, "If the president asks you to do it, then it is not illegal".

This is Congress agreeing with Nixon.

[novapsyche.livejournal.com]

Qwest was the only big one who did not break the law

Thank you. I'd been trying to recall the name of the company but was drawing a blank.