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

[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.