« previous | TPM CAFÉ READER POSTS HOME | next »
FISA Amendment Is Now Redundant
There's no need for Obama nor anyone else to vote on the FISA bill now, it's unnecessary thanks to a Bush-appointed Appeals Court judge.
Judge Reject Bush's View on Wiretaps
Highlights from the article:
A federal judge in California said Wednesday that the wiretapping law
established by Congress was the “exclusive” means for the president to
eavesdrop on Americans, and he rejected the government’s claim that the
president’s constitutional authority as commander in chief trumped that
law.
He said the rules for surveillance were clearly established by Congress in 1978 under the Foreign Intelligence Surveillance Act, which requires the government to get a warrant from a secret court.
“Congress appears clearly to have intended to — and did — establish
the exclusive means for foreign intelligence activities to be
conducted,” the judge wrote.
“Whatever power the executive may
otherwise have had in this regard, FISA limits the power of the
executive branch to conduct such activities and it limits the executive
branch’s authority to assert the state secrets privilege in response to
challenges to the legality of its foreign intelligence surveillance
activities
Advertisement
Comments (13)
Thanks
I guess we can go back to debating Wes Clark and McCain's victim strategy.
July 3, 2008 3:45 PM | Reply | Permalink
It would be wonderful, wouldn't it, if Congress took this opportunity handed them on a platter and said, "Never Mind."
July 3, 2008 3:50 PM | Reply | Permalink
Unfortunately, Judge Walker's rulings are the reason they are passing immunity.
July 3, 2008 4:30 PM | Reply | Permalink
Don - if you can tie the immunity issue to that quote from Judge Walker's rulings, I will read each word with total fascination. He's talking about the requirements FISA places on the government, not on the telecoms.
July 3, 2008 8:39 PM | Reply | Permalink
CYA
July 3, 2008 11:23 PM | Reply | Permalink
Well, I guess that's not really an explanation, is it? But the thing is, Elizabeth, it seems like people are taking the explanations they need to justify their positions. But why pass any amendment at all?
Okay, the administration claims there was a hole in FISA where foreign to foreign communications that were routed through the US were considered illegal and, what, might even brush against the 4th Amendment and might make them hesitate to spy and might not even garner a warrant from the "never-say-no-girls" FISA Court? Is there any plauseable explanation from this particular administration as to wy they need to amend this? AIf there were, could there be an easy fix (that the admin turned down before).
What other reason could there possibly be to overhaul FISA, a system that already allows almost carte blanch spying? Perhaps, it really is just what any outside observer might see it as. An attempt to have the lawsuits against the telecoms dismissed because, according to Judge Walker, Judge Taylor, and Judge Gilman (all who have heard these cases) FISA requirements surmount "state secrets" privileges and, potentially, the truth will out.
July 3, 2008 11:49 PM | Reply | Permalink
This ruling is important, but it's an interim one that does not settle any of the lawsuits being heard.
And since this particular suit is directed at the government itself, not at a phone compay, it in no way impacts the issue of telecom liability.
It seems to me the telecoms' bottom-line defence has been that they reasonably believed the wiretap requests were legal, not that they actually were legal.
I understand that you are saying the "compromise" bill is no longer needed to reassert the exclusivity of the FISA law. But such a reassertion is still a good thing; Bush and Cheney are slow learners.
And that is just one of the rationales that congresscritters are citing for backing the FISA changes.
There's much to dislike about this bill, over and above retroactive civil immunity. And the backroom way it was cobbled together doesn't inspire confidence.
But it does bring the wiretap program back within a legal framework.
Communications technology has changed explosively over 30 years; it's hard to argue that 1978 legislation remains perfectly sufficient to regulate today's surveillance possibilities.
July 3, 2008 5:40 PM | Reply | Permalink
Walker has ruled in the telecom cases that the program was illegal and the telecoms would have known that, allowing the suits to go forward. He wrote
in the telecoms cases, “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”
Obama again today explained his support for the bill:
FISA states it is the exclusive law, has been the exclusive law and Walker just reaffirmed that. Bush and the telecom cos. broke that exclusive law. To excuse passing a new bill that grants them immunity for breaking that exclusive law and also expands their ability to illegally spy on Americans with “we really, really mean this is the exclusive law this time…” is ludicrous. There just is no excuse for this from our government and especially for Dems who were elected to restore our rights.
July 3, 2008 6:24 PM | Reply | Permalink
this ruling brings the wiretap back into a legal framework. This bill will result in the dismissal of all the cases scheduled to go to Judge Walker - who will hear ALL the telecom cases.
There is no need for the Amendment. There's no loophole to close, only illegality to prosecute. The FISA bill is not expiring but the craptastic bill to fix FISA is expiring. Good, let it expire, FISA itself is enough - without any meddling whatsoever.
I have said time and time again, I am less concerned about telecom immunity that the expansion of what data can be mined and the reduction in the power of the courts to review warrants. You know, that tired old idea of reasonable cause, no they can only review if the paperwork was filed, not whether it's worth the paper it's filed on.
Telecom immunity is a red herring to distract you from the immense expansion of government wiretapping rights -- and the immense elimination of your own rights. You all focus on that as if that's important....but the rest of the bill is what takes away your 4th Amendment rights.
I would rest easy knowing the Supreme Court - ANY COURT - would overturn this, except that thanks to the bill, no one will have standing to take it to Court. Brilliant, they construct and unconstitutional law and then in the particulars make sure than no one, NO ONE, can take the government to court to overturn it.
July 3, 2008 6:33 PM | Reply | Permalink
To clarify, by "There's much to dislike about this bill," I mean that I dislike much of it.
As a furriner, my rights are also affected.
The bill appears to spell out that the government has an unfettered right to tap all my communications that happen to be routed through U.S. hubs.
So I don't mean to sound nonchalant.
And you're right that retroactive immunity, though the hot-button issue for most, is a fairly minor part of the problem.
I have no evidence for this, but my suspicion is that one aim of this bill might be to create a legal framework for surveillance practices that have evolved and grown over the years, in some cases dating back before George Bush or 9/11.
One might argue that passing a flawed law is preferable to continuing to operate in legal murkiness.
You, I suspect, would say any program that can't conform to the 1978 law should simply be scrapped.
That principled stand is unlikely to prevail politically.
It's little consolation, but the bill does call for re-evaluation by the end of the coming presidential term. If security fears have receded by then, moves to beef up legal oversight could succeed.
Sorry to come across as an apologist for the bill.
I'm really not; I'm just trying to logic out the rationale behind congressional support for it. I doubt constitutional scholar Barack Obama simply despises the 4th amendment.
July 3, 2008 8:12 PM | Reply | Permalink
That was the problem from the start - it wasn't FISA, it was that Bush ignored FISA and did what he wanted.
Jesus - how many times does this have to be said? FISA was on the books for years before Bush and used by other presidents to authorize unwarranted searches. They however, went to the FISA court after the fact and got approval. AFter the fact - get it? The executive has the power through FISA to contravene our rights and always did. The protection was the FISA court that Bush ignored.
The Appeals Court could not have held anything else- if you read the original statute you will see - it empowers the executive to conduct unwarranted searches, as long as the executive reports back to the Court and that's what Bush did not do.
Short of repealing FISA, no one is going to get the constitutional result that the lying Glenn Greenwald insists we will get. No, we won't. He just hates Obama - obviously.
July 4, 2008 11:46 AM | Reply | Permalink
Wow, really, Tena? If that's the case, then it's totally bizarre that the two presiding FISA Court judges were alarmed and infuriated that Bush compromised the FISA Court's after-the-fact warrants by engaging in illegal and unconstitutional spying before applying for the warrants:
[snip]
[snip]
[snip]
It's so weird that Kollar-Kotelly would involve Ashcroft and Rumsfeld. What a Chicken Little she is.
Here's another overwrought Glenn-Greenwald-like, hand-wringing hysteric:
What the fuck is wrong with these people, Tena? Do they all hate Obama?
July 4, 2008 2:52 PM | Reply | Permalink
Let us not forget that telecom immunity refers only to civil liability. It does not address criminal liability which can only be prosecuted by the government.
Also, civil liability in this case, immunity or no, is a tough case to prove in terms of actual damages. A corporation can not be sued for violating constitutional rights as the constitution only refers to limitations on the government itself, not individuals or corporations absent a law that requires them to follow certain procedures, such as non-discrimination, for example. Therefore, I can tell you to shut up without violating your First Amendment rights. I could also tell everybody you wear woman's underwear (which, of course would be no big deal if you are a woman) without violating your privacy rights as long as you couldn't prove any damages, or that the allegation was false which would be slander, and face no penalty.
The best way to ensure our rights, especially given the dismal record of Congress in caring for them, is to elect leaders that actually care about them, not pressing civil suits that may well end up pointless exercises.
As for the civil suits exposing the egregious violations of the Bush administration, admittedly their main value, a real Justice Department headed by an honest lawyer, could do a much more efficient and speedy job of that as well.
July 4, 2008 12:41 PM | Reply | Permalink
Post a Comment