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John Dean clarifies his remarks on FISA (Olbermann apparently misrepresented his position)
Keith Olbermann's defense against those who called him on his FISA flip-flop was that John Dean is "worth 25 Greenwalds", and he, Olbermann, simply took Dean's word as gospel.
But in a new interview with progressive blog Firedoglake, Dean clarifies:
I said that when I read the bill, and talked to the folks at the ACLU who had been following it, that it was not clear. I raised it when appearing on Countdown with the hope that someone might figure it out. But that is the nature of this badly drafted bill that it is not clear what it does and does not do, and the drafters are not saying.
But even if the bill is unclear there is no question the Bush Administration is not going to do anything to the telecoms, so the question is whether a future DOJ could -- and here there is case law protecting the telecoms. But there may be language buried in the bill that protects them as well but it can only be found by reading the bill with a half dozen other laws which I have not yet done.
I made no declarative statements rather I only raised questions that jumped at me when reading the 114 page monster.
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Comments (20)
Oops, forgot the link. Here:
http://firedoglake.com/2008/06/27/glenzilla-vs-olbermann-john-dean-weighs-in/
June 28, 2008 7:31 PM | Reply | Permalink
What Dean, Turley, and Greenwald et. al fail to remind their readers/listeners is that the plaintiffs in the telecom case will still be able to argue that the legislation which granted immunity to the telecoms was unconstitutional. That it violates the separation of powers and enumerated powers doctrines. That only a court, not the chief executive, can decide whether the initial request to the telecoms to spy was a "legal" directive. And that the trial court can agree and throw out the law. And that the appeals court can agree. And that the Supreme Court can uphold the Appeals court. And that will be the end of it.
Talking about the law, particularly in an area as complicated as this, in small snapshots is doing more harm than good, and creating more hysteria than rational discussion.
June 29, 2008 2:24 AM | Reply | Permalink
Tha's wut Ah'm TAWKIN' 'bout!
June 29, 2008 2:54 AM | Reply | Permalink
libgirl,
The plaintiffs can argue that to who? Keith Olbermann? The court is required by this law to dismiss the suit on finding (what's already found) that they were told they were acting legally by the government. I guess they could try to get an appeals court to overturn. What do you think those chances are?
June 29, 2008 5:10 AM | Reply | Permalink
The "court" is never required by the law to do anything. The "court" finds laws unconstitutional all the time and kick cases to the appeals level as part of that process.
In fact, it is the most likely tactic the plaintiff's attorneys will use to get certiorari once this legislation makes its way to the Supreme Court. The practice of law in this country, while frustrating and in drastic need of reform, is hardly a set of immutable standards and crystal-clear decisions.
At best, American jurisprudence is a rough and tumble fight of opposing theories - one that says The Constitution is inviolate and another that says it is a living document forever in flux.
June 29, 2008 12:50 PM | Reply | Permalink
Hi Don:
Anytime a law is enacted, the judiciary can entertain challenges by attorneys who represent parties affected by the law that the law violates the constitution. The legislative branch is NEVER the final word on things. Even when the legislative branch tries to remove the ability of the judiciary to act in certain ways (as Congress did under DeLay when they were attacking "activist" judges), the judiciary can strike those things down because they violate the separation of powers doctrine.
You will frequently see this when the legislatures of the various states enact statutes that try to remove judicial discretion on the admission of evidence (particularly in DUI and sexual assault cases). The legislature can write these laws until they blue in the face, but the trial court judge gets the final say on what evidence gets admitted and what doesn't. You also see this where legislatures try to write mandatory presumptions (as opposed to permissive inferences) into criminal statutes. Appellate courts don't care for that.
Now, I have not reviewed the portion of this 140 plus page bill that pertain to telecom immunity so I don't know what the various avenues of challenge are. But I guarantee you it will be challenged. No lawyer anywhere would let a new bill like this go unchallenged. We fight all new laws that hurt our clients. So a challenge to the bill (soon to be statute) is a foregone conclusion. I just can't predict the outcome.
Hope that answers your question!
June 29, 2008 5:16 PM | Reply | Permalink
That clears up my confusion. Or maybe it just adds to it but thanks anyway. I have no doubt EFF or the ACLU would try to challenge this but I have less doubt they’d be heard in the end. I guess if any law is unquestionably unconstitutional it could be readily challenged.
But this is a question of congress granting immunity for crimes that may have been (ok, were) unconstitutional, not the immunity itself.
If Congress can grant immunity for any wrongdoing, say in return for testimony, future help, whatever; doesn't it follow that immunity must be pretty much unchallengeable or it is like a rubber check and future "witnesses" would never agree to testify for immunity? The surveillance parts of the bill would be looked at separately from the immunity, right? And there again, the catch 22 of standing would come into play (who could sue or prove harm?).
I don’t pretend to understand the law itself and reading it I’d understand even less (even Dean says he doesn’t get it all). I try to read those who do get it and look at the stakes the different parties are playing with. Maybe I still don’t get it, but even so, I can’t see congress passing immunity that can be easily knocked down. That would do more damage to everyone involved than help. If the telecoms and admin didn’t think this was a lock on a get-out-of-jail-free card, I don’t think they would be pushing all in to get it.
June 30, 2008 2:23 AM | Reply | Permalink
Hang on... As a former Verizon customer (and yes, I cut off my landline over this) who believes he has a legitimate claim, I still want to know why congress is intervening here and why my party's nominee is aiding that interference.
Yes, I still can take my claim all the way to the Supreme Court. But congress shouldn't be interfering here at all.
Also, time is an issue. Even just winding through the civil courts, this could take a decade. Add having to appeal to the supremes just to let the case go forward and you're talking a timeframe that's so long that a lot of victims will die before they get a shot at compensation. Dow's Indian Bhopal disaster is still in court. Do we really want FISA to wind up like that?
June 29, 2008 3:23 PM | Reply | Permalink
It will end up in that kind of battle whether we like it or not. That is what happens to Constitutional dilemmas in this country. With or without immunity, someone will litigate this case based on the violation of the Constitution. This addition to the legislation actually gives the plaintiffs more standing with the court, not less.
June 29, 2008 3:33 PM | Reply | Permalink
Destor,
That was already going to happen. Litigation like this never happens quickly. A decade or more is about right. Exxon Valdez, as you all know, just finished its litigation THIS WEEK. That is SOP in civil litigation like this.
As the defendant in civil litigation, you delay delay delay. Delay always helps the defense, particularly in criminal cases. Speedy trial? Hah! Only in rare cases do I advise my clients to exercise their right to speedy trial. There would have to be some pretty unusual facts to make me want to try a case within speedy.
But this litigation was going to take ages with or without this law. Certainly you can now add five years to the calculus, but what's five years in a case like this? Nuttin.
I am not defending this aspect of our civil litigation system, mind you. I am just telling it like it is. I actually am one of those rare attorneys who believes we should do away with class action lawsuits; that they sully our entire system. Please don't tell my friends...
June 29, 2008 5:26 PM | Reply | Permalink
Thank you. The most important comment made about this issue.
June 29, 2008 4:26 PM | Reply | Permalink
Too bad it's wrong!
June 29, 2008 5:11 PM | Reply | Permalink
This is inaccurate.
The 40 cases currently in the pipeline against the telecoms will be dismissed outright, and any new suits would have to be refiled.
June 29, 2008 5:08 PM | Reply | Permalink
Based on what legal precedent will new legislation "automatically" dismiss pending legal cases? You can say something is so over and over again and that won't make it so. So sorry. Looks like you won't be a real boy after all.
June 29, 2008 5:34 PM | Reply | Permalink
See my explanations above. This gets tiring. Perhaps review Articles I, II, and III of the United States Constitution. And some case law regarding the following two doctrines: Separation of powers and enumerated powers. Or find a One L and ask to borrow his or her conlaw textbook or, better yet, his or her class outline. Or consult a conlaw Hornbook. Try sticking to the writings of two guys named Laurence Tribe and Cass Sunstein. And stay away from Greenwald.
Now you know where to start, so go get educated.
June 29, 2008 5:36 PM | Reply | Permalink
I don't give one shit about the telecoms. I don't care if they can be sued because it doesn't matter - they'll settle out of court if they're sued.
That does nothing for our rights. The statute, FISA, is meant as a vehicle to violate our rights - that's why it was written. It gives the executive the right to do that - unwarranted search and seizure, as long as the executive presents the case after the fact of the search to the FISA court. That's what Bush didn't do - after he had submitted two that got turned down.
Bush fucked up by not following the law- and the law here is FISA which always empowered him to go against the constitution. FISA has been in place for years and has been used by other presidents to violate the constitution, since that's the purpose of the statute. The protection written into it was the FISA court - and that's all the protection that was written into it.
And as originally written or rewritten - any guarantees of protection of our rights is and always was a farce under FISA, but that is just exactly what the statute intended all along. So bitch and complain - it's not going to be repealed, no matter what Obama does. It was enacted to address a national security issue and for that reason alone it is going to be around.
June 29, 2008 11:45 AM | Reply | Permalink
You got it Tena, as usual.
All this new outrage over FISA, as though FISA 1978 was so well written and protective of our rights. Yeah right.
New outrage is lame. Unless directed at Jimmy Carter, not Obama.
June 29, 2008 5:39 PM | Reply | Permalink
If ya'll are SO pissed off at the telecomms that you want a President Friggin McCain elected, may I suggest that first you express your justifiable rage by canceling your cell phone, land-line, cable and internet accounts, and refuse to do business with the specific telecomms you are so justifiably pissed at, and not screw up the planet for the rest of us.
The framers of the Constitution would expect no less of you.
June 29, 2008 12:49 PM | Reply | Permalink
There has always been monitoring of cross border communications. It was a bit of an inside joke before the Internet went public, then commercial, back in the late '80s and early '90s. We'd stick signature blocks on all e-mail with all the best scary keywords in them - a FU by early e-mail users to colleagues - sometimes just down the hall - who were programming the computers that searched for danger.
June 29, 2008 2:10 PM | Reply | Permalink
Not sure how FISA is even applicable per Bush's immmunity for an illegal "search" of communication companies' consumers.
Wasn't Bush simply violating the terms of the 4th Amendment?
After all, it's not as though Bush applied for permission from the FISA court, was refused and went ahead anyway.
Neither is he arguing that he abided by the terms of FISA, and that he was acting within that law.
His argument is that FISA was too slow, so he spied on people irrespective of what FISA required.
Not sure why this isn't simply a prima facie violation of the 4th Amendment, FISA notwithstanding.
June 30, 2008 11:02 PM | Reply | Permalink
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