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Mr. Olbermann's Special Comment
Did anyone else notice -- from a tactical perspective -- the brilliance of Olbermann's special comment? He showed how Obama can "have his cake and eat it too." He demanded Obama speak out loudly: (paraphrasing) if evidence exists, say you will prosecute.
Mr. Obama does not have to say a word. The point was not to call out the Senator. The point was to ease our collective blogmind! Olbermann is reassuring us that the immunity is only partial, and with evidence, we can drive a truck through the hole.
While Mr. Olbermann pleads for reassurance from Mr. Obama, he's baking the confidence into the cake of the comment itself -- no response is neccessary.
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Comments (24)
Keith is a brilliant straight-talker as always. In this case, he is merely articulating what ALL thinking people (includging Obama) see but don't necessarily need to proclaim. Moveon.org needs to take a hint.
July 3, 2008 8:58 AM | Reply | Permalink
We will get no evidence, and there will be no prosecutions, if Obama does not win the elections.
That is hardly the only glaring flaw in Olbermann's case. But it invalidates it completely.
July 3, 2008 9:05 AM | Reply | Permalink
Diachronic, I agree to your first point.
Why exactly does that premise entail your conclusion? Let alone why the entailment is unassailable.
July 3, 2008 9:13 AM | Reply | Permalink
You are correct, satyagraha.
The argument is not invalid. It is unsound (the first premise is not true now, and may never be true).
July 3, 2008 9:28 AM | Reply | Permalink
Intrading shows Obama's victor at 65% chance and McCains at 30% chance. Unsound: yes and no.
July 3, 2008 10:17 AM | Reply | Permalink
Criminal trials can convict only convict beyond a reasonable doubt. Fair to say, the telecoms may be able to raise "reasonable doubt" that they violated the law because the same government that would be prosecuting them is the same government that asked them to cooperate in contradiction to the law. The telecoms have a strong case for entrapment and acting upon false assurances from the government.
Civil trials are based upon preponderance of the event i.e. it is 50.1% likely that you did what you were accused of. In addition the complainants are the people whose rights were actually violated rather than in the criminal case where the government brings the case. Disclosure of evidence in the civil case may also reveal actions by government officials in violation of the laws - those are the folks who should be tried criminally.
The potential for criminal trials against telecoms is just a ruse and a bad one at that.
July 3, 2008 9:37 AM | Reply | Permalink
event = evidence grrr no edit/preview
July 3, 2008 9:39 AM | Reply | Permalink
Wow. Nice arguments.
So, because criminal cases are always brought forth by the state, telecoms will be quasi immune simply because the (at the time) state ordered the questionable conduct. I can see that.
But what if the (in the future) state argues that the (at the time) state also implicitly ordered constitutional conduct? Could the (in the future) state argue that telecoms were presented with contradicting orders and chose to follow the explicit over the implicit? That the telecoms did so without any visible struggle between the conflicting commands.
I understand your point: criminal prosecution would amount to retroactive punishment -- insofar as telecoms were acting within the law at the time. My question is this: if A gives you a room for shelter and says, "X are the rules for the room, you must obey all of X or you will lose the room." Then B acting on behalf of A comes in and says, "do Y (obviously not X)." At what point is B legitimately acting on behalf of A? And it which point is it your responsibility to go to A before doing Y and ask, "are you aware B is your agent and requesting not X?"
I know that argument flies more smoothly in criminal court through the skies of negligence. But if crimes are based on the rules of the room, it seems like those agreeing to the demands of B are engaging in criminal negligence.
July 3, 2008 10:14 AM | Reply | Permalink
That's not my point at all. The telecoms were NOT acting legally at the time so it's not retroactive punishment for something they thought at the time was legal. My point is they would never be held criminally liable. There's no jury that can convict them since the government basically got down on their knees and begged them to commit the crime. Reasonable doubt is an awesome burden and the government can't effectively prosecute someone for doing what the government officially asked them to do.
Then a future government wants to charge them criminally? Of course they can but here's their get out of jail free card: 1. How were we to know the government (who makes the laws) was asking us to do something illegal?
It's somewhat akin to charging an undercover narcotics officer with possession of drugs. They committed an illegal action at the behest of and as an agent of the government. How do you hold them criminally liable for that in a court of law with the reasonable doubt standard in effect? No jury in the world would convict them in a criminal court.
Civil court - absolutely they have a problem. Their violation was not to the government, but to their customers.
July 3, 2008 10:45 AM | Reply | Permalink
Is not the government an agent acting on behalf of the Constitution?
July 3, 2008 11:51 AM | Reply | Permalink
The government is a product of the Constitution, not an agent. A government and administration can be corrupt and do awful things to the Constitution. The GWB admin has ignored the Constitution, dragged it through the mud, trampled it etc. But at the end of the day, the Constitution still exists and we are a nation of laws and principles, not the men and women who make up the administration of the government.
July 3, 2008 12:01 PM | Reply | Permalink
Then let us sue the government for being a shitty product and falsely marketing themselves as the only one.
July 3, 2008 12:34 PM | Reply | Permalink
Is not the government an agent acting on behalf of the Constitution?
July 3, 2008 11:51 AM | Reply | Permalink
The first objection to this point is paraphrased this way:
"But Obama has to be elected or else the bill is worthless."
My response: If Obama is not elected, the FISA bill will be the least of our worries. The whole constitution will be worthless (or remain so).
The objector's perception of the counter point is this: The objection invalidates Olbermann's position.
My response to this perceived argumentative death blow by objector: Olbermann's position is based on the options left for President Obama. When addressing someone in a hypothetical role which is only possible under X circumstances, the implication is clearly that X circumstances are presupposed to be thus and so.
Diachronic: may I humbly suggest a reading of Wittgenstein's Tractatus -- totally relevant today. He will demonstrate to you why "invalidates it completely," is a claim you may not want to make.
July 3, 2008 9:38 AM | Reply | Permalink
"It's somewhat akin to charging an undercover narcotics officer with possession of drugs. They committed an illegal action at the behest of and as an agent of the government. How do you hold them criminally liable for that in a court of law with the reasonable doubt standard in effect? No jury in the world would convict them in a criminal court."
Not necessarily correct. It would depend on the fact pattern, not soely on the fact that he, a gov't agent, is being prosecuted by the gov't for whom he is an agent. The gov't authorizes those agant's actions WITHIN LIMITS, most central being that, violating the law is not included among the justifiable means of defending the rule of law.
There are countless scenarios in which an undercover narcotics officer could illegally possess drugs, and be found guilty of that.
July 3, 2008 1:16 PM | Reply | Permalink
Point taken - but if the government explicitly asks an undercover narc to do something against the law (like carry drugs on an airplane undisclosed) and he gets arrested for possession by Customs, there's no way he gets convicted because he was acting as an agent of the government carrying out their unlawful request. It would never even go to trial.
Same thing with the telecoms. The were acting at the request of the gov't. How can the gov't then come back and charge them with criminal violations they asked them to commit? That case would be thrown out of criminal court in a heartbeat.
July 3, 2008 1:47 PM | Reply | Permalink
To piggyback on JNagarya's point:
What the government asked the telecoms to do is different from asking an undercover narc to carry drugs. Actually it is more like asking a cop to snort cocaine over and over.
The cop says, "well the government asked me to do it so it was the law that I had to do a pound of cocaine a week. Don't blame me, I was just doing what I was told."
July 3, 2008 3:49 PM | Reply | Permalink
Again if the gov't told you to do drugs, they can technically charge with a crime. But you didn't do the drugs (or wiretap your customers) for your own pleasure. You were doing so because the gov't asked you to. They could charge you with a crime for doing what they asked, but no one would convict. Ever. Likely wouldn't even get to trial.
July 3, 2008 6:07 PM | Reply | Permalink
'They' ask you to do drugs and then 'they' can charge with crime. I would argue that the Obama administration would be a qualitatively different product than the Bush administration. So, I reject the notion that the same entity is enabling and punishing.
I'm not sure the second point is necessarily the case. If I enjoy cocaine but, out of fear of prison, refuse to engage, then the moment a member of the administration commands me to snort cocaine, I'm pleased. Telecoms are composed of human beings, some of which, would be interested in what the world is talking about. The command is not primarily in their interest, but to say they receive nothing in the way of pleasure is, I think, too far.
July 3, 2008 8:33 PM | Reply | Permalink
I say "commands me." Actually, in this instance, it would be more like "asks me." That makes the case stronger. The choice is clear and the request obviously questionable. Simply complying (to something obviously unethical) without struggle is criminal negligence.
July 4, 2008 8:48 AM | Reply | Permalink
Thanks for the link to Olbermann's special comment.
July 3, 2008 1:44 PM | Reply | Permalink
satyagraha-
In the Tractatus I can find 4.024, "To understand a proposition means to know what is the case if it is true." So we have President Obama, and that will be a new situation.
But that will not be the only new element that must be considered (4.023: "[A proposition] must describe reality completely.").
Along with an Obama Administration will be a new fact: Telecom immunity from civil suits. This is undetachable from the scenario, as i understand it.
Now, as dijamo has explained, the evidentiary threshold is far LOWER for civil lawsuits, than for criminal lawsuits. So how will it be possible for the LOWER threshold to be unreachable, but not the HIGHER one, as these cases arise? The civil immunity itself will create a powerful precedent that will encourage further abuses.
July 3, 2008 3:50 PM | Reply | Permalink
4.023 "a proposition describes a state of affairs."
A state of affairs entails the likelihood of future events.
July 3, 2008 8:57 PM | Reply | Permalink
4.023 "... a proposition describes reality by its internal properties... [it] constructs a world with the help of a logical scaffolding..." 4.024 therefore "one can understand [a proposition] without knowing whether it is true."
July 3, 2008 8:53 PM | Reply | Permalink
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