Telecom Amnesty: Where's the outrage?

[CJJ]

The facts:
[ul]
[li]Several US Telecom companies complied with a blanket request from the Bush administration to hand over private records of customers in violation of their fourth amendment rights.[/li]
[li]As an example of the legal fallout, a federal lawsuit against AT&T was filed on behalf of its customers. AT&T’s initial defense–raised to gain immediate dismissal–was that they operated in “good faith” the requests from the Bush administration were legal. However, the judge in the case ruled (warning: PDF):[/li]

Because the alleged dragnet here encompasses the communications of “all or substantially all of the communications transmitted through [AT&T’s] key domestic telecommunications facilities,” it cannot reasonably be said that the program as alleged is limited to tracking foreign powers. Accordingly, AT&T’s alleged actions here violate the constitutional rights clearly established in Keith. Moreover, because “the very action in question has previously been held unlawful,” AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.

Accordingly, the court DENIES AT&T’s instant motion to dismiss on the basis of qualified immunity. The court does not preclude AT&T from raising the qualified immunity defense later in these proceedings, if further discovery indicates that such a defense is merited.

One should also note that other telecom companies–including Qualcomm–denied the Bush administration request because of its questionable legal grounds, so this is not a case of 20/20 hindsight.

[li]ATT set up a new lobbying group in favor of a law that by fiat declares all telecoms the winner in these and similar lawsuits. Moreover, the law will also place a blanket immunity as long as the telecoms pass a laughable “demonstration” test (emphasis below mine):[/li]

The draft Senate bill has the support of the intelligence committee’s chairman, John D. Rockefeller IV (D-W.Va.), and Bush’s director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.

[/ul]
Lets summarize this little hop-skip-jump:
[ul]
[li]Big corporation breaks the law, loses in court.[/li][li]Big corporation lobbies Congress.[/li][li]Congress nullifies court decision and makes it impossible to sue big corporation again.[/li][/ul]
To borrow from this Glen Greenwald op/ed:

Telecom amnesty implicates not only all of the issues raised by warrantless surveillance and the rule of law, but really calls into question the basic fairness of our entire political system, i.e, whether the wealthiest and most powerful corporations in Washington can literally buy their way out of lawbreaking. Anyone who boldly impedes what would be this bipartisan travesty – and a “hold” on an issue of this magnitude would, in the context of Senate customs, be very bold – is someone who will have demonstrated genuine leadership on a truly critical issue. There has been precious little of that thus far in the presidential race.

Greenwald is encouraging US Senators running for president–nost notably Chris Dodd–to take the unusual step of placing a hold on the bill, a parliamentary procedure that would at least delay its passage, bring the facts of the matter to light, and possibly raise enough public outrage to scuttle this backroom deal.

So, are you outraged enough yet?

[Sunrazor]

My outrage has been exhausted. After the Iraq war, Gitmo, Abu Ghraib, the entire tenures of attorneys general Ashcroft and Gonzales, Cheney, Rumsfeld, the pussification of McCain – I’m just exhausted. There’s no more outrage. I’m just hunkerin’ down on the farm hoping January '09 gets here before the Constitution is burned in Bush’s fireplace.

[marshmallow]

Usually I get outraged when something unexpected and out of left field happens. But here? Let’s see, will Congress act under an authoritarian agenda and help out their friends in the telecommunications companies or will they instead make them accountable under the law and protect civil liberties? Gee, that’s a real tough one ain’t it?

But hey, good thread. This has been in the news for quite some time and I haven’t seen it here yet.

[RTFirefly]

What Sunrazor said. My outrage has been burned out.

Occasionally, something will briefly spark it, but what will and won’t is almost random these days.

I used to talk about telecom issues all the time, during the 1980s and 1990s, when it was next to impossible to even get anyone to listen. So I feel I should be outraged about this. But the outrage isn’t there.

Forget Bush Derangement Syndrome. It’s been replaced by Bush Fatigue. Even more so because this was going to be the year that Congress stopped rubber-stamping every stupid thing Bush sent their way, what with the Dems in charge. Hah.

Politically, everything just feels very futile right now.

[CJJ]

[QUOTE=RTFirefly]
Politically, everything just feels very futile right now.
[/QUOTE]

Not that futile, it seems. From Senator Chris Dodd’s website:

The Military Commissions Act. Warrantless wiretapping. Shredding of Habeas Corpus. Torture. Extraordinary Rendition. Secret Prisons.

No more.

I have decided to place a “hold” on the latest FISA bill that would have included amnesty for telecommunications companies that enabled the President’s assault on the Constitution by illegally providing personal information on their customers without judicial authorization.

I said that I would do everything I could to stop this bill from passing, and I have.

It’s about delivering results – and as I’ve said before, the FIRST thing I will do after being sworn into office is restore the Constitution. But we shouldn’t have to wait until then to prevent the further erosion of our country’s most treasured document. That’s why I am stopping this bill today.

Will it work? Who knows, but instead of being cynical about the political process, here’s a chance to support someone trying to defy business-as-usual.

With this bold move, Dodd has rocketed to the top of my list of Democratic contenders for the presidency. If you, like I, are tired of hearing safe-sounding platitudes from the “front runners”, and are tired of the race being reduced to “what’s Hillary wearing” and “why doesn’t Barack have a flag pin on his lapel?”, here it is. Dodd right now has my vote, plus (if it’s OK to say it here) a campaign contribution.

[elucidator]

In my case, its not so much outrage burnout as the futility of trying to pick out one snowball in an avalanche.

[E-Sabbath]

Mr. Dodd, thank you.

No, I’m pretty outraged, I just have no idea what the hell I can do about it.

[RTFirefly]

[QUOTE=CJJ*]
Not that futile, it seems. From Senator Chris Dodd’s website:

Will it work? Who knows, but instead of being cynical about the political process, here’s a chance to support someone trying to defy business-as-usual.
[/quote]
Cynical? Of course I’m cynical. This is the first time all year that the Dems have used their muscle in any meaningful way, beyond being able to win up-or-down votes.

They haven’t once forced the GOP to filibuster. They haven’t bottled up bills like this one that had no business getting considered. They haven’t, say, tried to de-fund White House offices that defied Congressional subpoenas. They haven’t even considered using their inherent contempt powers. (Have they asked Mukasey if he’ll make sure Congressional subpoenas are enforced?) After their initial try, and Bush’s veto, they haven’t tried to use their power of the purse to fully fund a withdrawal from Iraq. And they certainly haven’t talked about impeachment.

To call them a worthless bunch of pussies is an insult to womanhood everywhere.

So it’s more with a sense of “better late than never, but it’s pretty damned late” than “go, team!” that I take this news.

With this bold move, Dodd has rocketed to the top of my list of Democratic contenders for the presidency. If you, like I, are tired of hearing safe-sounding platitudes from the “front runners”, and are tired of the race being reduced to “what’s Hillary wearing” and “why doesn’t Barack have a flag pin on his lapel?”, here it is. Dodd right now has my vote, plus (if it’s OK to say it here) a campaign contribution.

He’s gone from off my list altogether, to being a close second choice for me.

But dammit, it shouldn’t come down to holds. This is the sort of hardball that the Dems should routinely be playing against an intransigent, uncompromising GOP and President.

:headdesk:

[mlees]

Wait. Let’s forget Bush for a second.

Consider scenario A:

1. Government agency asks several commercial enterprises to do something illegal.
2. Those companies comply.
3. Government then turns around and says “:smack: Doh! By the way, that was illegal. We are going to prosecute you now.”

Isn’t all that something similar to entrapment? There is absolutely no defense on the tele-comm side?

Not being snarky, I am curious.

Sure, you could say that the tele-comms should have known better, and refused… but I’m sure the government was using the “national security and secrecies” card.

Let’s say this: (Scenario B)

1. Government agent asks Bill Gates to pay money for sex.
2. Bill Gates, in a fog of hormones, agrees.
3. Bill Gates is then arrested for solicitation.

But my Bill gates scenario is entrapment, right? Bill Gates knows prostitution, and solicitation, are illegal, but he still gets his charges dismissed, right?

What is the difference between the two scenarios?

[marshmallow]

[QUOTE=RTFirefly]
But dammit, it shouldn’t come down to holds. This is the sort of hardball that the Dems should routinely be playing against an intransigent, uncompromising GOP and President.
[/QUOTE]

Why would they fight over something they agree with?

[RTFirefly]

[QUOTE=marshmallow]
Why would they fight over something they agree with?
[/QUOTE]
Well, if they’d run last fall on the claim that “we’re going to be a lot like the GOP, except on the minimum wage and SCHIP”, I doubt they’d be in the majority today.

They really might want to dance with those that brung them.

[CJJ]

[QUOTE=mlees]
Consider scenario A:

1. Government agency asks several commercial enterprises to do something illegal.

2. Those companies comply.

3. Government then turns around and says “:smack: Doh! By the way, that was illegal. We are going to prosecute you now.”
   …
   Isn’t all that something similar to entrapment? There is absolutely no defense on the tele-comm side? Let’s say this: (Scenario B)

4. Government agent asks Bill Gates to pay money for sex.

5. Bill Gates, in a fog of hormones, agrees.

6. Bill Gates is then arrested for solicitation.

But my Bill gates scenario is entrapment, right? Bill Gates knows prostitution, and solicitation, are illegal, but he still gets his charges dismissed, right?

What is the difference between the two scenarios?
[/QUOTE]

In the telecom case, the crime is (1) being committed against a third party, the customers, and (2) AT&T received no quid pro quo; they had no reason to be enticed by the offer.

The customers are parties to the lawsuit against the telecoms, not the government. The scenario would more accurately be:

1. Government asks Bill Gates to shoot Bruce Willis
2. Bill Gates complies, even though he has no personal reason to shoot Mr. Willis.
3. Bill Gates is arrested, but says he isn’t to blame because the government told him to do it, even though he didn’t want to.

I don’t think the government should get off scot-free, but Gates/AT&T can’t claim entrapment here. AT&T may be more successful claiming coercion, and that would be an interesting defense. But instead of biting the hand that feeds them, they preferred to buy amnesty. Funny; “amnesty” was a dirty word when brought up during the illegal immigrant debate…

[RTFirefly]

[QUOTE=mlees]
Wait. Let’s forget Bush for a second.

Consider scenario A:

1. Government agency asks several commercial enterprises to do something illegal.
2. Those companies comply.
3. Government then turns around and says “:smack: Doh! By the way, that was illegal. We are going to prosecute you now.”

Isn’t all that something similar to entrapment? There is absolutely no defense on the tele-comm side?

Not being snarky, I am curious.

Sure, you could say that the tele-comms should have known better, and refused… but I’m sure the government was using the “national security and secrecies” card.

Let’s say this: (Scenario B)

1. Government agent asks Bill Gates to pay money for sex.
2. Bill Gates, in a fog of hormones, agrees.
3. Bill Gates is then arrested for solicitation.

But my Bill gates scenario is entrapment, right? Bill Gates knows prostitution, and solicitation, are illegal, but he still gets his charges dismissed, right?

What is the difference between the two scenarios?
[/QUOTE]
First of all, “the government” is ultimately the Constitution and the laws of the United States.

In theory, at least, the actual officeholders are less important than the Constitution and the laws. (In practice, this theory is periodically under assault from reality.)

The Constitution and the laws didn’t ask the telecoms to comply with the Executive in contravention of the laws. The current Administration did that. But the current Administration isn’t the law; everyone from the President on down is subject to the law. And if the President (or one of his minions) tells you to break the law, the proper response is, “Fuck you, Mr. President.”

Being told by the President to break the law doesn’t carry with it the right to break the law. The telecoms know that. And they all have well-stocked legal departments and tony law firms at their beck and call to clarify any doubts they might have.

And it’s perfectly reasonable, at some future date when law and sanity have been restored to this great nation of ours, to hold both President and telecoms responsible for their crimes.

[jayjay]

[QUOTE=RTFirefly]
They really might want to dance with those that brung them.
[/QUOTE]

That’s SO 1989! The operative paradigm now is “Dance with the folks who can afford to buy you a shiny new office on K Street when you retire this gig”…

[mlees]

[QUOTE=CJJ*]
In the telecom case, the crime is (1) being committed against a third party, the customers, and (2) AT&T received no quid pro quo; they had no reason to be enticed by the offer.

The customers are parties to the lawsuit against the telecoms, not the government.

The scenario would more accurately be:

1. Government asks Bill Gates to shoot Bruce Willis
2. Bill Gates complies, even though he has no personal reason to shoot Mr. Willis.
3. Bill Gates is arrested, but says he isn’t to blame because the government told him to do it, even though he didn’t want to.
   [/QUOTE]

Ah. Easy enough for even me to understand, now. Thanks.

@RTFirefly

Being told by the President to break the law doesn’t carry with it the right to break the law. The telecoms know that. And they all have well-stocked legal departments and tony law firms at their beck and call to clarify any doubts they might have.

But are those lawyers fully knowledgable in National security and secrecy laws?

Maybe, then again, maybe not. I don’t think that the Homeland Security told these companies that, indeed, “this is going to be illegal, but we really really need you to do this for us anyways…”.

I ASSuME that the government probably cited some portion of whatever homeland anti-terrorism legislation that may have arisen since 9/11, and the lawyers went “duuuuhhh, oh, ok. If you say so…”.

The current administration has been citing various legal justifications for whatever they do since I can remember. And it seems to take several months, minimum, before a proper rebuttal shows up (along the lines of “That doesn’t say what you claim it does…”). When there is a Federal agent telling you “this is classified as a very sensitive, national security issue. Lives may be at stake…”, it might be hard to consult outside experts.

Never-the-less, it would be an important lesson for these companies, in that, don’t always take the government’s word for it.

[Bricker]

If Barack Obama won’t put a hold on this bill, why would you vote for him?

If Hilary Clinton won’t put a hold on this bill, why would you vote for her?

[marshmallow]

[QUOTE=Bricker]
If Barack Obama won’t put a hold on this bill, why would you vote for him?

If Hilary Clinton won’t put a hold on this bill, why would you vote for her?
[/QUOTE]

I’d rather get castrated than shot in the head. I think.

[Freddy_the_Pig]

[QUOTE=CJJ*]
In the telecom case, the crime is (1) being committed against a third party, the customers, and (2) AT&T received no quid pro quo; they had no reason to be enticed by the offer.
[/quote]

1. No crime is being alleged here. AT&T is being sued for committing a tort against its customers, not prosecuted for committing a crime against the state. There is zero chance that Bush’s Department of Justice will prosecute anybody.

2. AT&T was paid by the NSA were cooperating on this project.

[elucidator]

Hmmm. What calibre of bullet are we talking, here?

[RTFirefly]

[QUOTE=mlees]
But are those lawyers fully knowledgable in National security and secrecy laws?

Maybe, then again, maybe not. I don’t think that the Homeland Security told these companies that, indeed, “this is going to be illegal, but we really really need you to do this for us anyways…”.
[/quote]
I’m sure the telecoms are well-versed in telecom law, in what they can and can’t do with their wires and switches. They have to know that a crime doesn’t turn into a legal act just because the President of the United States or his underlings ask you to do it.

And if they aren’t certain about such a question, they can get more, better lawyers.

Besides, here’s what Federal judge Vaughn Walker, appointed by Bush Sr., had to say. This isn’t in the usual quote box because I’ve hand-typed much of it; the original is PDF:

Because the alleged dragnet here encompasses the communications of “all or substantially all of the communications transmitted through (AT&T’s) key domestic telecommunications facilities,” it cannot reasonably said that the program as alleged is limited to tracking foreign powers. Accordingly, AT&T’s alleged actions here violate the constitutional rights clearly established in Keith. Moreover, because “the very action in question has previously been held unlawful,” AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.

it would be an important lesson for these companies, in that, don’t always take the government’s word for it.

I bet some of the telecom execs and lawyers are old enough to remember Vietnam and Watergate. Just a hunch.