Exactly! Which is why immunity should be off the table. Maybe the telecoms shouldn’t be held liable for their actions or maybe they should. That’s for a court to decide. But granting them blanket immunity, particularly in a case that touches on fundamental constitutional rights, is wrong.
The point of the defense of entrapment is the we, as a society, consider it outrageous conduct on the part of the government to initiate a crime, and then punish the guy who goes along with the crime.
The same reasoning applies here. It’s outrageous to ask a company who is pressured into cooperating with the government to then turn around and pay out civil forfeitures because they cooperated. If this had gone the other way, then we’d be railing at these companies that could have prevented a terrorist attack, but were so afraid of being sued they obstructed the emergency government requests for information.
We can’t place anyone, individual or company, into a damned-if-you-do, damned if you don’t trap. That’s, quite simply, outrageous.
And Senator Obama gets that.
If the companies were actually pressured into cooperating, could they not present that evidence at their trial? Wouldn’t the judge or jury take that into account?
Maybe the telecoms are innocent victims in all this. Or maybe they’re not and deserve to be punished. Isn’t that the whole point of a civil trial … to settle questions like this?
Isn’t that the whole point of legislation, to settle questions like this so that people understand exactly when they are breaking the law?
What, you want hard facts instead of unsupported ad hominem, banal sloganeering, and wild speculation? What kind of voter are you, anyway? You sound like one of them clever-head ed-you-kited types. Cain’t trust 'em, ya, know.
Well, if you really insist, you can find the text (along with that of all pending bills, resolutions, and amendments introduced to the House and Senate) of Foreign Intelligence Surveillance Amendments Act of 2008 (Engrossed Amendment as Agreed to by Senate). Page to TITLE II–PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS, SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS. for the specific content of interest:*SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS.
(a) Limitations-
(1) IN GENERAL- Notwithstanding any other provision of law, a covered civil action shall not lie or be maintained in a Federal or State court, and shall be promptly dismissed, if the Attorney General certifies to the court that--
(A) the assistance alleged to have been provided by the electronic communication service provider was--
(i) in connection with an intelligence activity involving communications that was--
(I) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and
(II) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
(ii) described in a written request or directive from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was--
(I) authorized by the President; and
(II) determined to be lawful; or
(B) the electronic communication service provider did not provide the alleged assistance.
(2) REVIEW- A certification made pursuant to paragraph (1) shall be subject to review by a court for abuse of discretion.
(b) Review of Certifications- If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) would harm the national security of the United States, the court shall--
(1) review such certification in camera and ex parte; and
(2) limit any public disclosure concerning such certification, including any public order following such an ex parte review, to a statement that the conditions of subsection (a) have been met, without disclosing the subparagraph of subsection (a)(1) that is the basis for the certification.
(c) Nondelegation- The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or a designee in a position not lower than the Deputy Attorney General.
(d) Civil Actions in State Court- A covered civil action that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.
(e) Rule of Construction- Nothing in this section may be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.
(f) Effective Date and Application- This section shall apply to any covered civil action that is pending on or filed after the date of enactment of this Act.*
In other words, it offers explicit immunity for a telecommunications service provider which was acting in compliance with United States Code, and authorized by the President. Challenging the legal authority of the Executive branch and its agencies by suing communications providers for presumably legal compliance is like punishing child abuse by locking up the children.
In addition, offering amnesty gives the service providers the freedom to admit previous compliance without fear of ongoing civil action, and thus the impetus to conceal and/or maintain covert surveillance activities is reduced or removed. Attempting to retroactively punish these companies for compliance will result in a blockade of lawyers protecting corporate interests. I have to agree with Bricker; this is far better than the alternative of having the powers of the executive remain nebulously far-reaching and without defined oversight, and I don’t even find a compelling rational argument for removing said amnesty except as conditionally defined within the text of the bill.
Hey, far be it from me to undercut the outrage of the political right about how Obama has abandoned them. Er, wait a minute…
All of you concerned citizen participants in the so-called democratic process need to actually take the effort to educate yourself on the actual, factual, no bullshit status of the issues about which you maintain the pretense of interest and concern rather than get your opinions freeze dried and packaged from media pundits who can’t even spell “legislation” without a spellchecker and partisan hacks with an agenda and a marketing degree.
No, no, no. Wrong movie reference entirely. Try this: “Did you know even the stock holders of ‘The Phone Company’ hate the phone company?”
Stranger
I think that the telcomm industry would have been unlikely to release phone records (or allowed wiretaps) on their own, without the request of the government.
So, here we have an individual who was cleared of charges (with distribution of alcohol, I assume), after being pressured by an undercover agent into doing something that the defendant knew was illegal. In other words, the government must not punish folks of crimes that were initiated at the behest of government.
(Or did I interpret that wrong?)
By the same token, we could say to a criminal defendant, “If you were pressured by the government, present that evidence at trial, and the jury will take it into account.” But we don’t, because we recognize that the danger of a jury disregarding that or giving it insufficient weight is high.
Similarly, we know that large companies are not typically held in high regard by juries. The danger that a jury will say to itself, “Hey, this company has billions; they can afford to cough up a few hundred thousand here…” is manifest. But the question is not “Can the company afford it?” but “Is it fair to penalize them for this?”
No, it’s not.
I realize I’m just a lurker/guest, but how is this relevant? Does entrapment protect against civil lawsuits (I honestly don’t know)?
If the chief of police, in his official capacity, asks me to kill John Smith and promises me immunity if I do it and I proceed with the crime, then entrapment protects me from criminal charges, but does it protect me from a wrongful death lawsuit from John Smith’s wife?
If it doesn’t, then your argument regarding entrapment in this case is irrelevant as entrapment laws have no bearing on civil suits and shouldn’t be brought up regarding this legislation.
The other question I have is when you say that companies shouldn’t be held responsible for complying with requests from the government - how far does this blanket abdication of responsibility go? Is any request from the government too far? Does any individual have any expectation of a company protecting their privacy when they say the will absent an official warrant/subpoena?
It doesn’t.
There’s a similar concept in civil law, however, called estoppel, that embodies similar reasoning. I used entrapment as an analogous example, believing it would be something readers would be more familiar with.
Such disdain.
Yes, you are correct that “it offers explicit immunity for a telecommunications service provider which was acting in compliance with United States Code, and authorized by the President.”
And who determines if the company was “acting in compliance with United States Code”?
Read the text closely:
" … if the Attorney General certifies to the court that … "
If you would pay close attention to the “partisan hacks with an agenda and a marketing degree” you would know that *this * is the part of the bill that they’re pissed about.
The telecoms get immunity if the Attorney General says their actions were lawful. That’s what it boils down to. But anyone who has been paying attention to the shenanigans at the Justice Department under the Bush Administration knows that the Attorney General is not a neutral actor in this situation. For example, Attorney General Mukasey has said that he will refuse to enforce contempt of Congress citations against members of the Bush administration. His predecessor was forced to resign as a result of being involved in the politically-motivated dismissals of U.S. Attorneys. The fact that the current Attorney General is given the power to determine if the actions of the telecoms were legal or not is what makes this current FISA bill so awful.
“Presumably” legal compliance.
I am kind of amazed at the notions of entrapment here and government strong-arming of the companies. We are not talking about an FBI agent who leaned on some schlub on the streets. We are talking about the likes of AT&T!
Apparently one telco felt there was enough legal murkiness to reject the government’s request. AT&T and the rest of them are huge companies with battalions of attorneys and are acutely aware of the law. You just cannot walk in and arm twist these companies to do your bidding even if you are the president of the United States.
Equating this to punishing child abusers by throwing the children in jail wholly mischaracterizes what we are dealing with here. These companies are not naive or helpless.
This is a more profound issue than the CEO of AT&T buying president Bush a Happy Meal without noting it as a contribution. These companies went against basic constitutional guarantees.
If the companies are truly victims then it should come out in court and we can focus on the miscreants in the government who brought this about. Granting immunity seems like nothing more than sweeping it all under the rug. Nothing to see here, don’t worry about your basic rights as citizens…move along. :rolleyes:
Ah, I see. You are expecting for-profit corporate persons to act as moral compasses for the rest of the nation, and to engage in acts of civil disobedience whenever they encounter laws or otherwise lawful executive instruction which are in violation of natural civil rights. Just the other day I had a long conversation with the chairman of ExxonMobile about his favorite author, Henry David Thoreau.
Yes, yes, I see where that is a realistic expectation.
Stranger
Just to sum up the anti-FISA position:
-
By executive order the NSA asked the nation’s telecoms to let them wiretap voice and data without any search warrants.
-
One telecom, Qwest, was so uncomfortable with the questionable legality of the plan that they refused to participate.
-
When the warrantless wiretapping program came to light the Justice Department argued that it was legal. The legal reasoning behind their position has been widely criticised, but since Justice refuses to prosecute anyone for the wiretaps, the point is moot.
-
However, the anti-wiretap forces realized that even if Justice was a roadblock to criminal prosecution, they couldn’t block civil actions. The telecoms could be sued! Hopefully this would allow evidence to be introduced in court that would lay the groundwork for future criminal prosecutions. Or at least shed some light on a very shady program that looks like it might violate some fundamental rights.
-
But the latest FISA bill gives the Justice Department the power to block civil actions as well. If the Attorney General says it’s legal, it’s legal.
That’s why people are pissed off.
“Well, when the President does it that means that it is not illegal.”
– Richard Nixon
As the resident Frothing Obama Kool-Aid Queen, please understand that I wholeheartedly appreciate your strong support of Senator Obama. However, if you thought he was “ideologically pure” and would never compromise on important Democratic issues (calling it triangulation), then you really didn’t study and understand who Senator Obama is, and how he has legislated over his 12 years of service to Illinois and this country.
He has built his entire career on the premise that compromise on some aspects of legislation is not only necessary, but prudent, while maintaining a strong stance on other aspects, so as not to undermine the object of the big picture, is the best way to pass good legislation that both “sides” can ultimately feel comfortable with, and therefore all constituents benefit from. See his Death Penalty Reform bill that he got passed in Illinois as a perfect example.
Do not let yourself be fooled into buying the argument that compromise is the same as capitulation, and become disillusioned with Senator Obama. He will continue to lead and legislate as he always has; with an eye towards the best possible outcome for the nation, while staying within the bounds of the Constitution.
Yes we can.
No, I expect corporations to act in their best interests financially. Which means avoiding courses of action that could get them sued.
Qwest figured out that the NSA was asking them to place themselves in legal jeopardy. The other telecoms should have done the same.
Seems to me anything you are directed to do by the government that violates the US Constitution is by definition an illegal instruction. Seems Qwest (I think) felt that way and told the government no and I doubt they felt like some protector of civil rights.
I expect corporations to abide by the laws and not ignore them because the President or his cronies hand-waved them away.
Thanks. I realize we can’t achieve all our ideals over night but this one did bother me a little.
I don’t expect to find any politician {or just person for that matter} with whom I will agree with on all their judgement calls. What I’m hoping for in Obama is a leader who will renew our hope in the possibility of leaders with more integrity and allow us to believe we can and should expect that in our elected officials. We should demand it. We in the general public can afford more absolutes and righteous indignation than a politician can. Even though I may not agree in this case I still think he’s the best choice by a mile or two.
For better or for worse, Shodan is very much the right wing couterpart to the posters he labels “the usual suspects.” They all seem to believe that heavy-handed sarcasm denigrating the positions against which they have emotional investments corresponds, somehow, to actual debate and their posts are usually pretty much as free of content.
That said, I would note that we have tolerated such histrionics from posters on the Left and the Right (and from among theists, deists, and atheists and from pro- and anti-gun ownership zealots along with partisans of a few other topics) for the last nine years. After this long, most folks have learned to ignore the interruptions and continue the discussions with posters who are more interested in exchanging ideas than in indulging in the internet equivalent of waving a sign saying “JOHN 3:16” at every event.
You are free to Pit whomever you choose, but I do not see us inventing one more new rule to prevent posters from displaying their personality quirks–unless they actually violate the rules against attacking other posters. The SDMB generally values (attempts at) wit and nasty humor, (although the number of Reported Posts I see does tend to vary by whose ox is being gored), and I would suggest simply considering the source when you encounter such activity.
[ /Moderating ]
I am trying to figure out how to agree without appearing to suck up. What the Hell, consider my source. 
I have a layman’s familiarity with estoppel, although I’m not sure how it applies here with regards to civil suits.
Again (realizing that it’s an extreme illustration), if the chief of police told me that it would be fine for me to go and kill John Smith in cold blood, would estoppel or entrapment or anything like that prevent the Smith widow from lodging a wrongful death suit against me, even though a criminal prosecution might be out the window?
Or I think a better analogy might be that as a renter, I have a reasonable expectation to a certain amount of privacy from my landlord. If my someone came up and asked the landlord for a key to my apartment without identifying themselves or giving cause and my landlord complied, then it’s clear that I would be within my rights to take civil action against him, agreed?
So does the situation change significantly when the individual identifies himself as a police officer, but without a warrant? If my landlord (knowingly and without coercion) gives a police officer without a warrant the key to my apartment, would I be justified in filing suit against my landlord the same way I would be if he gave it to the homeless guy on the corner?
If so, then how is the telecoms case any different? My understanding (and please correct me if I’m wrong) is that I have a reasonable expectation to a certain amount of privacy when I’m talking on the phone - otherwise the police wouldn’t have to get a warrant to tap my phone. So when the telecom company knowingly lets the government tap my phone without a warrant, shouldn’t they be held as responsible as if my landlord had given the keys to my apartment to a government agent without a warrant?