Olbermann rant about FISA

[Bricker]

@kaylasdad99

Depends on how narrowly one wishes to define the term “ex post facto”. A literal translation “after the fact” would seem to make it effectively synonymous with “retroactive”. But in the sense of the Constitutional prohibition on laws that would retroactively criminalize heretofore legal activity, Bricker is probably accurate, and this provision is no more a prohibited “ex post facto” law than any grandfather clause in any other legislation.

Bricker (shrewdly, IMHO) does not point out that there is more than one way to interpret the utterance of the words, (apparently) chooses the interpretation that is erroneous, and ascribes it to Olbermann. For that matter, I’m not persuaded that Keith didn’t intend for the term to carry the rhetorical baggage of unconstitutionality, yet reserve the more colloquial* meaning for any challenges that might crop up. I guess you win some, you lose some.

So, well spotted, Bricker! Anything else there that you’d care to disillusion us about?

*to the extent that a fancy-schmancy Latin phrase can be said to have a colloguial meaning, that is.

Olberman is not a dummy. I can’t find any other instances of poorly capitalized word choices in his writing. Nor is there any particular perjorative value to “ex post facto” laws or process, apart from the type forbidden by the constitution.

I am therefore confident in saying that there’s a distinction between “ex post facto” (a Latin phrase that could certainly be applied to this legislation, but devoid of any constitutional implications) and “Ex Post Facto” (a constitutional clause that forbids imposition of criminal penalties when the criminal statute did not exist at the time the crime was committed).

Now, if you suggest that the choice was deliberate – use the constitutional phrase but defend the geenric Latin if challenged – yeah, probably right.

So, to be utterly clear: this legislation does not offend the Ex Post Facto clause of the US Constitution, even if it has an ex post facto effect.

[ElvisL1ves]

"A literal translation “after the fact” would seem to make it effectively synonymous with ‘retroactive’ ".

You’ll find no one here more insistent on literality in Constitutional interpretation than Bricker himself, of course.

[ElvisL1ves]

Capitalization makes all the difference there? Really?

It doesn’t go either way?

An ex post facto law (from the Latin for “from something done afterward”) or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law.
…

Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-long imprisonment) retroactively.

[kaylasdad99]

@Bricker

Olberman is not a dummy. I can’t find any other instances of poorly capitalized word choices in his writing. Nor is there any particular perjorative value to “ex post facto” laws or process, apart from the type forbidden by the constitution.

I am therefore confident in saying that there’s a distinction between “ex post facto” (a Latin phrase that could certainly be applied to this legislation, but devoid of any constitutional implications) and “Ex Post Facto” (a constitutional clause that forbids imposition of criminal penalties when the criminal statute did not exist at the time the crime was committed).

Now, if you suggest that the choice was deliberate – use the constitutional phrase but defend the geenric Latin if challenged – yeah, probably right.

So, to be utterly clear: this legislation does not offend the Ex Post Facto clause of the US Constitution, even if it has an ex post facto effect.

Capitalization? He’s a good speaker, but I’m damned if I’m a good enough listener to detect capitalization.

I’m going to assume that you read a transcript of the commentary.

Meanwhile, I (again) invite you to deconstruct more of the segment for us.

ElvisL1ves, if I understand matters correctly, the courts have been more willing to sustain retroactive laws that confer benefits upon individuals than ones that impose penalties.

[ElvisL1ves]

It’s the principle of the thing, in a putative democratic republic, that Olbermann is upset about. And very rightly so.

If we already live in a world where only technical parsing of grammar matters anymore, then we’ve already lost.

[Bricker]

@kaylasdad99

Capitalization? He’s a good speaker, but I’m damned if I’m a good enough listener to detect capitalization.

I’m going to assume that you read a transcript of the commentary.

Sorry - yes, I did.

@kaylasdad99

ElvisL1ves, if I understand matters correctly, the courts have been more willing to sustain retroactive laws that confer benefits upon individuals than ones that impose penalties.

Exactly correct. There is absolutely no problem with this legislation running afoul of the Ex Post Facto clause. As I said in the relevant GQ thread:

@Bricker

There is not any interpretation of the ex post facto clause that remotely comes close to forbidding a present grant of immunity for civil liability that covers past conduct.

The complexity to the ex post facto clause arises when considering things like a changed rule of evidence. No one has any trouble with the concept that Congress cannot pass a law making mopery illegal on July 1st, 2007, and the federal government follow that by prosecuting you for mopery committed on June 26, 2007.

But – what if Congress changes the federal rules of evidence on July 1st, 2007, to make admissible certain types of evidence that were not admissble before, and then the government decides to prosecute you? What if the change comes as the result of a Supreme Court ruling about admissibility of evidence?

Interesting stuff, which I’ll be happy to discuss in detail if anyone’s …er… interested. But nothing to do with civil immunity for past conduct.

Now, that’s not to say that there might not be constitutional implications. In the past, Congress has paired the immunizing of tortfeasors with a statutory compensation fund – the 9/11 fund, for example. Congress said, in effect, here’s this money, but in exchange you can’t sue the airlines. In other instances Congress hasn’t given victims a choice – the asbestos legislation immunized companies against asbestos claims, created a federal compensation fund, and didn’t give victims a choice of opting out and suing.

But is that a matter simply of wise public policy, or is offering some sort of compensation when you take away the right to sue a constitutional requirement?

Probably not. Consider the famous case of Fisch v. General Motors. This was a case that arose from the post-WWII “Fair Labor Standards Act.” After Congress passed the law, the courts interpreting it found that it required a company to pay a worker from the moment they entered the factory, rather than (as had been the practice) only from the moment he actually arrived at his station and began work. These decisions created a veritable onslaught of lawsuits against companies who had been doing it the old way, and Congress reacted by passing a law eliminating the liability after the fact, which law was then upheld by the federal courts.

Obviously, this is not precisely on-point. But I am aware no case law that holds the reverse, nor of a viable constitutional theory that would forbid Congress’ action here.

Meanwhile, I (again) invite you to deconstruct more of the segment for us.

Apart from my commentary above, I have this to say about Olberman’s rant: it’s a rant. That is, it’s not a well-designed or supported debate.

@Olberman

“Who’s to blame?” Mr. Bush also said this afternoon, “Look, these folks in Congress passed a good bill late last summer… The problem is, they let the bill expire. My attitude is: if the bill was good enough then, why not pass the bill again?”

You know, like The Gulf of Tonkin Resolution.

Or Executive Order 90-66.

Or The Alien and Sedition Acts.

Or Slavery.

The comparisons offered are not on point. To rebut that point, you must say why the bill is flawed and should not be passed. Of course, Bush’s own logic is also tortured, for a similar reason; he should point to the specifics of the bill’s value as he sees it. But he’s arguably doing that, if we take his comment to simply mean: “All the reasons that I previously gave for the bill’s passage, which Congress found compelling, still apply.” It’s then up to Congress - or comemtators - to point to specifics, not supply a list of previous legislation that is now no longer considered wise.

@Olberman

By your own terms and your definitions — you have just sided with the terrorists.

You got to have this law or we’re all going to die.

But practically speaking, you vetoed this law.

It is bad enough, sir, that you were demanding an Ex Post Facto law, which could still clear the AT&Ts and the Verizons from responsibility for their systematic, aggressive, and blatant collaboration with your illegal and unjustified spying on Americans under this flimsy guise of looking for any terrorists who are stupid enough to make a collect call or send a mass e-mail.

As my commentary above makes clear, there is no per se problem with an “ex post facto” (no caps) law. Congress has passed many of them; they are perfectly legal. Nor is the wiretapping program fairly characterized as “looking for any terrorists who are stupid enough to make a collect call or send a mass e-mail.” There are many valid arguments to be made against the wiretap program; that it will only snag those who “make a collect call or send a mass e-mail” is not one.

@Olberman

Mark Klein was the AT&T Whistleblower, the one who explained in the placid, dull terms of your local neighborhood I-T desk, how he personally attached all AT&T circuits — everything — carrying every one of your phone calls, every one of your e-mails, every bit of your web browsing into a secure room, room number 641-A at the Folsom Street facility in San Francisco, where it was all copied so the government could look at it.

Everything!

Every time you looked at a naked picture.

Every time you bid on eBay.

Every time you phoned in a donation to a Democrat.

Wait – what happened to “make a collect call or send a mass e-mail?” Suddenly it’s become “everything — carrying every one of your phone calls, every one of your e-mails, every bit of your web browsing !” Which is it??

I’m not going to continue, because it’s absurd. Give me a real argument and I’ll address it. “Oh, noes!!!11! Wiretapping bad!” is undoubtedly heartfelt, but not substantive. As my high school debatew teacher was fond of pounding into our heads, “A gratuitous assertion may be equally gratuitously denied.”

[ElvisL1ves]

@kaylasdad99

ElvisL1ves, if I understand matters correctly, the courts have been more willing to sustain retroactive laws that confer benefits upon individuals than ones that impose penalties.

It would perhaps clarify the discussion to dispense with the “ex post facto” aspect and recognize it for what it is - an *amnesty * bill.

[vibrotronica]

It’s not “wiretapping bad111”, it’s “WARRANTLESS wiretapping bad!” You want to wiretap me, go to a judge and get a warrant. Otherwise, it’s a tool of tyranny. There’s no accountability for how that power is being used right now. If Bush wanted to use it to spy on and and subvert his political enemies, he could do it. I think he has, and that’s why he’s so afraid of these telecom lawsuits.

[kaylasdad99]

@ElvisL1ves

It would perhaps clarify the discussion to dispense with the “ex post facto” aspect and recognize it for what it is - an amnesty bill.

I’m good with that. I’m equally good with the House having declined to pass one.

Thanks for your contributions, Bricker, you’re always informative. I still found Olbermann’s appearance to be inspiring and stimulating. You may cavil that it’s not a well-designed or supported debate; it’s not clear to me that it’s intended to be.

[wring]

@vibrotronica

It’s not “wiretapping bad111”, it’s “WARRANTLESS wiretapping bad!” You want to wiretap me, go to a judge and get a warrant. Otherwise, it’s a tool of tyranny. There’s no accountability for how that power is being used right now. If Bush wanted to use it to spy on and and subvert his political enemies, he could do it. I think he has, and that’s why he’s so afraid of these telecom lawsuits.

that’s what I think, too. Not a fucking thing to stop him.

A scuz that used to work w/me had access (legally, for his job) to certain data systems, including the ability to run license plates. He ran mine to get my home address, then took to driving past my house late at night (before stalking laws) He had the ability to use resources, and unless some one complained, no one would check. And w/these warrentless wiretaps, **no one could ** (let alone would) check. Absolute power corrupts absolutely.

fucking coding.

[gonzomax]

Since FISA courts granted over 99 % of the tapping requests ,why did thei admin feel the need to get it all? They were allowed to start the tapping before they addressed the court. It cost them nothing to be legal. It just did not give them what they want. They want it all.

[wring]

@gonzomax

Since FISA courts granted over 99 % of the tapping requests ,why did thei admin feel the need to get it all? They were allowed to start the tapping before they addressed the court. It cost them nothing to be legal. It just did not give them what they want. They want it all.

my best guess would be that they wanted to tap lines that **wouldn’t ** have been granted. I can’t see any other reasonable reason. (especially since even if time was a factor, they were allowed to get taps and then ask for permission afterward)

[ElvisL1ves]

The reason doesn’t have to be reasonable. Just Cheney’s annoyance at having his vision of the all-supreme Unitary Executive hampered by those annoying whiners in Congress or on the courts - that’s all the “reason” there needs to be, and ISTM all there has ever been.

[wring]

@ElvisL1ves

The reason doesn’t have to be reasonable. Just Cheney’s annoyance at having his vision of the all-supreme Unitary Executive hampered by those annoying whiners in Congress or on the courts - that’s all the “reason” there needs to be, and ISTM all there has ever been.

Let me clarify my post: my best guess would be that they wanted to tap lines that wouldn’t have been granted. I can’t see any other reasonable reason for the need of warrantless taps. (especially since even if time was a factor, they were allowed to get taps and then ask for permission afterward

(italics is added for clarification). IOW, they had to have the warrantless taps because they wanted to listen in where there wasn’t a chance a warrant would be granted, even in hindsight. Since a warrant would be granted for bad guys, therefore, they wanted to listen in to ‘non bad guys’.

sppelink.

[gonzomax]

http://www.fff.org/comment/com0601c.asp FISA is a rubber stamp. Why Bush isn’t satisfied I can not even guess.The approval rate is over 99 percent. If that not good enough ,what does that say about you. You want nobody to have oversight.

[descamisado]

I think both ElvisL1ves’s and wring’s reasons could be true.

[ElvisL1ves]

Upon review, I think they’re actually the same reason. Actually.

[wring]

@ElvisL1ves

Upon review, I think they’re actually the same reason. Actually.

pretty close. I think there were certain people who they wanted to listen in on, and, given Dick’s attitude of "do what I want’, those pesky rights and laws were interferring w/ it.

[gonzomax]

The reason is not that they had specific people they wanted to tap. It is they wanted to tap EVERYONE.

[wring]

@gonzomax

The reason is not that they had specific people they wanted to tap. It is they wanted to tap EVERYONE.

Even I don’t believe this. they wanted to be able to tap anybody. There’d not be the resources/ability to tap everybody (and transcribe and review the transcripts). I seriously doubt that they’d want to listen in on my 16 year old niece Laura’s conversations w/her friends Omygawd, my mother is so like, wrong, you know, she is like so -didyaseewhat jason did? did you hear the new thing that linkoln did etc.