Today in Constitution-Shredding

The long, drawn-out search for a fig leaf behind which the House Democrats can capitulate on FISA appears to have arrived as Democrats back a "compromise" by which telecom firms that illegally assisted the Bush administration's surveillance efforts can be sued with the proviso that they get off scot-free if they can produce evidence that the Bush administration promised them (cross my heart, hope to die, stick a needle in my eye) that their illegal request was, in fact, legal. Since everyone already knows this happened, the companies all get off scot-free.

See Tim Lee, Glenn Greenwald, and Brian Beutler for more.

Who knows where this precedent of retroactively immunizing illegal conduct will lead us.

Comments

Fig Leaf? It looks more like a spruce needle to me. But when you have no balls, there's little to hide anyway.

Posted by fostert | June 19, 2008 5:32 PM

I feel safer already!!

Posted by John McCain: More of the Same | June 19, 2008 5:38 PM

War funding, pork, earmarks, FISA, Wall Street bailouts.... Sure glad we booted those GOPers out of Congress back in 2006.

Posted by kafka | June 19, 2008 5:43 PM

One interesting thing, to me, is that this compromise requires, for dismissal of an action, the Attorney General to certify to the district court hearing the action that the assistance was pursuant to the President's request.

Now, sure, AG Mukasey will make that certification for the pending actions. But what about Obama's AG? As far as I can tell, after Obama is elected, if someone brings a suit against a telecom, Obama's AG can simply refuse to make that certification, thereby letting the suit proceed.

Now, would Obama's AG do so? Well, I would think that the AG would do whatever Obama told him (or her) to do - thus, if Obama wanted to let the lawsuit continue, he could simply tell his AG not to provide the certification to the court. Maybe someone should ask Obama about this.

Posted by Al | June 19, 2008 5:45 PM

I've always been of two minds about this. It seems fairly commonsensical to me that the government has more power than the corporation. For a corporation to stand up to government demands some extreme cojones, and when you factor in the time and context, this seems a lot to ask.

I mean, I understand the division of branches and all, and if someone were to do that and force the Exec to go through the courts to compel the information, great. But the Executive clearly was making demands, and who knows what stick they were willing to wield to enforce them: jail time? worse?

Asking an Exec to a) hope that the Bush government didn't overstep and haul them off (Bush? No!), and b) be willing to wait for judicial redress in any case seems, well, it seems like a lot to ask. When the Justice Dept (or other agency) calls you up and starts demanding things, how much does anyone really want to fight them?

Bush was the one who overstepped. It really seems to me that Bush is the one that needs to have his feet held to the fire here. In point of fact, amnesty would be a fantastic tool to gather the evidence to do just that. Not that this Congress will do it.

Posted by Brad L | June 19, 2008 5:46 PM

Props to Al. That's the first glimmer of hope I've seen on this topic.

Posted by Wilbur | June 19, 2008 6:00 PM

Brad, this amnesty has the exact opposite effect from what you're arguing. It prevents us from finding out what the administration did and holding them accountable. If there were no immunity, then the lawsuits would proceed and evidence would be uncovered.

Also, the solution to the problem of companies caving in to administration pressure is *not* to remove any possible reason for them to try standing up to the pressure.

Posted by KCinDC | June 19, 2008 6:06 PM

BTW, I'm not sure how this is "Constitution"-shredding. FISA is a statute, not the Constitution.

Posted by Al | June 19, 2008 6:11 PM

Brad, this amnesty has the exact opposite effect from what you're arguing. It prevents us from finding out what the administration did and holding them accountable.

This is accurate.

I was probably imprecise in the way I constructed this - I wasn't arguing for this amnesty, or saying that this is the effect amnesty will have. I just don't necessarily see a problem with amnesty per se which is something that I feel like I hear a lot about as an evil unto itself, rather than as a poorly applied method.

Unconditional amnesty, by itself, would be a huge mistake. But the details of the proviso matter. How much information needs to be presented to gain amnesty? It's characterized a certain way by Matt, but what is the real requirement? One would assume that failure to comply would put the TelCo's back into risk.

Of course, after reading the Greenwald post a bit more carefully, this does look like a pretty big failure in practice.

And again, I'm not sure that the goal right now should be punishing the Telco's so much as using what leverage can be found to punish the administration. That, though, is more of a philosophical difference; nor is it determined here what the next step (absent amnesty) should be.

Posted by Brad L | June 19, 2008 6:19 PM

Hey, everyone, don't worry about it. Kucinich introduced articles of impeachment. I'm sure the Democrats will rally around him and perform their constitutional duty.

Posted by asl | June 19, 2008 6:21 PM

I wonder if this compromise will survive judicial scrutiny. If the plaintiffs already had a right to sue under the old FISA law and congress passes a retroactive amendment to take that right away- it sounds like an improper government taking to me.

Also, if there are constitutional claims like 4th amendment and privacy, then the compromise won't automatically make those constitutional claims void.

That being said, I think the compromise stinks and would love for Obama to stand against this forcibly. I won't hold my breath though...

Posted by Bob Oso | June 19, 2008 6:24 PM

It prevents us from finding out what the administration did and holding them accountable. If there were no immunity, then the lawsuits would proceed and evidence would be uncovered.

Is this really the goal anyway?

Wouldn't it likely take more than 7 months to "find[] out what the administration did"?

And once Obama is elected President, can't he just tell us exactly what the government did during the Bush years?

Posted by Al | June 19, 2008 6:26 PM

BTW, I'm not sure how this is "Constitution"-shredding. FISA is a statute, not the Constitution.

I think the most entertaining part of this blog is the manner in which Al careens wildly from interesting, cogent argument to weirdly oversimplified and cartoonish statements. Sorry Al.

But isn't FISA there to protect people from... I think it is called... unreasonable search? Isn't that pretty much what all warrants are for? (well, or seizure, but you get it.)

I mean, when you break the law, you are breaking a specific law, but that law actually has some sort of purpose, and the purpose of FISA is pretty clear, no? Breaking laws that are there to protect these rights, and then destroying their ability to be enforced later, is pretty much shredding the constitution.

Posted by Brad L | June 19, 2008 6:40 PM

Question: what are the legal precedents circumscribing the culpability of private individuals/companies who acted illegally -- whether they knew it or not -- at the request of government officials?

If there is no guaranty of amnesty, what is the likely punishment for participating telecoms?

Posted by JD | June 19, 2008 6:54 PM

Damn. I need an addition on my house and I was counting on those telco suits to pay for it.

You want to see a weapon of mass destruction. Try my wife after I tell her we have to cancel the marble flooring!

Posted by Al Sooyoo | June 19, 2008 7:00 PM

I mean, when you break the law, you are breaking a specific law, but that law actually has some sort of purpose, and the purpose of FISA is pretty clear, no? Breaking laws that are there to protect these rights, and then destroying their ability to be enforced later, is pretty much shredding the constitution.

Well, sure, the law has "some sort of purpose". But that isn't the same thing as "the Constitution". While there has been some talk about the 4th Amendment, that's rather irrelevant to the FISA issue since, again, FISA is a statute and not the Constitution. Breaking a law is imply breaking a law; it doesn't necessarily have anything to do with the Constitution.

Posted by Al | June 19, 2008 7:02 PM

One wonders to what degree Obama can use this kind of thing to, in essence, run against the congress. One also wonders to what degree he will. Probably zero, but it's fun to think about.

Posted by urbino | June 19, 2008 7:06 PM

Damn. I need an addition on my house and I was counting on those telco suits to pay for it.

You want to see a weapon of mass destruction. Try my wife after I tell her we have to cancel the marble flooring!

Posted by Al Sooyoo | June 19, 2008 7:20 PM

A1,

Actually, Publius at ObsidianWings.com makes a very illuminating statement about this:

"Rights don’t exist if you eliminate all procedures to vindicate those rights. Otherwise, the rights become only words on paper, rather than living breathing liberties that must necessarily be enforced."

He was speaking on a different topic but I think it applies nicely here. Because FISA (and specifically the extension to it) inhibits the procedure to vindicate a constitutional right (here unreasonable search and seizure) the constitutional right therefore becomes meaningless. That FISA itself isn't a constitutional amendment is besides the point.

Posted by bakum | June 19, 2008 7:28 PM

I honestly don't understand why the people characterize this result as a capitulation. It's not. The Democrats have actively pushed this legislation through. And though they may place blame on their "Blue Dog" brethren, remember that Pelosi and Obama have helped Blue Dogs stay in office in the face of viable anti-Bush alternatives.

This is a Democratic Party choice. Not a capitulation.

Where is Obama, the leader of the Democratic Party on this? Where is Clinton and her "much needed" leadership skills?

It makes me wonder why anyone expects the Democrats to be different from the GOP.

And reminds me of why I left the Democratic Party.

Posted by jackifus | June 19, 2008 7:31 PM

Al,

The lawsuits we're talking about allege violations of the defendants' Fourth Amendment rights (pdf). Title VIII of this FISA Bill compels the federal courts to dismiss those same lawsuits--the ones alleging violations of consitutional rights--on the basis of an ex parte and in camera process whose initiation and outcome of Executive Discretion. This legislation, in other words, allows the administration to quash actions that allege consitutional violations and to do it under a cloak of secrecy. I think "shredding the Constitution" is a perfectly valid phrase under the circumstances.

Posted by southpaw | June 19, 2008 7:51 PM

. . .an ex parte and in camera process whose initiation and outcome of Executive Discretion . . .

Should be: . . .whose initiation and outcome is entirely a matter of Executive discretion . . .

Sorry about that.

Posted by southpaw | June 19, 2008 7:54 PM

While there has been some talk about the 4th Amendment, that's rather irrelevant to the FISA issue since, again, FISA is a statute and not the Constitution.

Actually, it is relevant, because the sotto voce view of the Bush Administration -- especially from the Cheney wing of the White House -- is that FISA is an unconstitutional limit of executive power.

So, we have an administration that has behaved as if FISA is unconstitutional restraint on Article II provisions, and a statute that could be challenged as a restraint upon Fourth Amendment rights. And this particular capitromise might ironically be described as 'legislative activism', because it endorses the executive's assertions without their being evaluated in the correct judicial venue.

Posted by pseudonymous in nc | June 19, 2008 8:34 PM

Matt: "Who knows where this precedent of retroactively immunizing illegal conduct will lead us."

Bush and Cheney - and the rest of the neocon scum, and their corporate cronies who enabled them - walk. That's where it leads to.

Does anybody really think the Dems will do anything about the Bush administration crimes if Obama is elected?

Posted by Richard Steven Hack | June 19, 2008 9:14 PM

Why? Why? Why? I am not getting this. Can someone please figure this out? They successfully quashed this in February, with positive political repercussions -- why bring this travesty of a "compromise" now?! What is Steny Hoyer afraid of? Has he gotten money from the Telecoms? Do they really think this is still November 2002? What am I missing?

Posted by Great Blue | June 19, 2008 9:19 PM

Great -- a version of the Nuremberg Defense for torts.

Posted by Davis X. Machina | June 19, 2008 9:20 PM

RE: Posted by Al | June 19, 2008 5:45 PM

No, the telecoms just have to prove that they received notification that the Exec branch considered the conduct legal at the time. What you're proposing would be even worse than congress' compromise in that any future AG could retroactively make something legal or not.

RE: Posted by Brad L | June 19, 2008 5:46 PM

These guys have rafts of lawyers, if they don't know what the law is that's no justification. Hell, it's no justification when I break the law either. Proposing that they should do whatever the Exec wants because they might be wrongfully jailed? WTF, what happened to my and everyone else's expectation of rights?

Posted by mactbone | June 19, 2008 9:27 PM

And once Obama is elected President, can't he just tell us exactly what the government did during the Bush years?

How will he know? I'm sure the administration is and will be doing everything it can to destroy all evidence of everything that happened during those eight years. They're no doubt already burning out the shredders.

Posted by KCinDC | June 19, 2008 10:45 PM

One interesting thing, to me, is that this compromise requires, for dismissal of an action, the Attorney General to certify to the district court hearing the action that the assistance was pursuant to the President's request.

No, it requires that the AG did make the certification, which presumably Gonzales did do, or this whole compromise wouldn't have gone anywhere in the first place. So it's entirely irrelevant what Mukasey or President Obama's AG might think.

Posted by KCinDC | June 19, 2008 10:58 PM

It's good to see so many outraged people. For anyone who's still a bit murky on this issue and wonders how the Democratic-controlled Congress could ever pass such legislation, Glenn Greenwald has top-notch pieces which detail everything you need to know, including key Democratic appeasers:
http://www.salon.com/opinion/greenwald/2008/06/18/fisa_campaign/index.html
http://www.salon.com/opinion/greenwald/2008/06/19/obama/index.html

I hope those who are outraged will know what to do with the following:

To reach the [Obama] Campaign Headquarters by phone, please call: [phone]

You can contact us by mail at:
Obama for America
P.O. Box 8102
Chicago, IL 60680

There's also a section on Obama's site to email comments:
http://my.barackobama.com/page/s/contact2

Naturally, the individual Congress(wo)men should be contacted as well.

Posted by chris09 | June 20, 2008 2:40 AM

For as long as this has gone on nobody can tell me why an ex post facto law can even be considered constitutional. Sure, the normal meaning is making something illegal that was formerly legal and then prosecuting but certainly the obverse applies.

Posted by rapier | June 20, 2008 5:39 AM

The issue is immunity from civil liability, not criminal prosecution. The ex post facto ban, IIRC, limits retrospective changes in the criminal law, not to civil -- Calder v. Bull, 1798.

Posted by Davis X. Machina | June 20, 2008 7:33 AM

Proposing that they should do whatever the Exec wants because they might be wrongfully jailed? WTF...

Yeah, I do think little inconveniences like that might factor into the decision-making. Because the Executive branch demanded you break the law is different than either not knowing it (not my original contention) or more broadly disobeying clear government mandates.

The courts should mediate disputes between branches of government (which is, essentially, what this is). But holding a corporation accountable for obeying the wrong branch of government is pretty dicey. If the court had said the the Executive was right and within his powers to demand this information (an outcome we would hope is unlikely, but is certainly possible, particularly given the general direction of the court, this is far from a lock), who knows what punishment the TelCos could be up for? What if there had been a second attack? Would they then be liable for that? Remember, there were claims of wartime powers, and there is a history of rights that have been suspended during wartime.

My misgivings here are that a corporation is being put in the difficult situation of predicting legal outcomes (which even rafts of lawyers have trouble doing) and choosing between branches of government to obey.

That doesn't strike anyone else as a bad thing to do?

Posted by Brad L | June 20, 2008 8:02 AM

Well, sure, the law has "some sort of purpose". But that isn't the same thing as "the Constitution".

Others fielded this, but to the snarky part:

I thought I was pretty clear that I thought the "some sort of purpose" is specifically the protection of rights guaranteed by the fourth amendment. I was leaning on the part where I said this: "But isn't FISA there to protect people from... I think it is called... unreasonable search?"

Others have spelled out what I was "implying." Next time I am addressing you directly, I will try to hand you unmistakable, single-declarative sentences that, while being utterly dry tonally, will make the point, instead of crediting you with pretty good reading comprehension skills, as I have been.

Yeesh.

Posted by Brad L | June 20, 2008 10:06 AM