[Peace-discuss] Obama's perfidy on FISA

[LAURIE]

John,

 

As I noted in my reply to Stuart's post, I believe that the telecom were
engaged in the sharing of information and records with the government on an
informal level without specific authorizations by the FISA court prior to
9/11 ; but even after 9/11 but prior to the Patriot Act's passage, they
engaged in said activities that circumvented the FISA court prior to the
passage of the Act which allowed them to do so.  The letters you refer to
were creature's of the Patriot Act and did not exist prior to its enactment
as was the cased for the provision that prevented them from divulging that
such a letter had been given them and that they were complying.  However, if
memory serves, the telecoms were engaging in such activities prior to the
Patriot Act's passage without specific authorizations by any FISA court.

 

As for not revealing the issuance of said letters and of compliance with
said letters, Qwest managed to  challenge that provision in general as did
some libraries and bookstores.  The telecoms in question just did not have
the balls, will, or desire to challenge the government on this issue; those
actors who did later won their cases for non-compliance although they had to
put up with a lot of crap in the interim and maybe even afterwards.

 

Although it may be practically inconvenient and dangerous, members of
society do have the right (and some would say obligation) to resist illegal
and unethical demands and requests just as they do have a right to resist
illegal arrests by law enforcement when they feel t hat such persons have
gone beyond their legal authority under the law or the Constitution.
Resisting arrest charges in many cases are "hummers" that are used to
intimidate and force compliance when such compliance is not warranted or
justified (the most obvious being when the charge is brought but it is the
only charge brought).  The telecoms could have resisted and gone to court
challenging the legality of the letters, the requests, etc.; but they chose
not to.

 

>  In such instances the small-fry soldiers should NOT be held accountable,
or they should be held significantly LESS accountable then the officers who
gave the orders and the government officials who gave the officers THEIR
orders.

 

But the telecoms are not exactly small-fry soldiers.  They are artificial
entities which in many cases are bigger, wealthier, and more powerful and
influential than many countries and any individual.  If they decided to
challenge the government, they - like GM in the past - are big and powerful
enough to create a stalemate that would go on in the courts for a long
period of time until the government decided to compromise.  No small-fry
soldier has the resources to do that.

 

From: John W. [mailto:jbw292002 at gmail.com] 
Sent: Friday, June 27, 2008 1:20 PM
To: LAURIE
Cc: peace-discuss at lists.chambana.net
Subject: Re: [Peace-discuss] Obama's perfidy on FISA

 

 

On Fri, Jun 27, 2008 at 6:06 AM, LAURIE <LAURIE at advancenet.net> wrote:

I would respectfully submit that the telecoms liability comes from their not
challenging the government's right to demand and obtain their cooperation
without obtaining a court order to do so, without any specification as to
the extent and time limits of such wiretapping, and without notifying their
customers who had an expectation of privacy that the companies were
participating in and complying with the government's requests for such
wiretapping.

Well, didn't FISA create some sort of special court where oversight is
minimal, or some special type of order whose name now escapes me (a letter
of something or other)?  And weren't the telecoms and the libraries
FORBIDDEN BY LAW to divulge to the customer that the customer was under
surveillance as a result of one of these letters from Homeland Security?

  

> Isn't it more important to restore our constitutional rights than to
create some legal liability for telecoms? 

Why not do both?  When an actor knowing acts in compliance with an illegal
order or law without getting beforehand in writing a formal statement of
being held harmless for their actions by those who they complying with; it
seems that they knowingly assume the responsibility for  and future
consequences of their actions and should not be excused after the fact.  I
am not sure that constitutional issues with the law are identical as
liability issues connected with acting under a law which may create economic
and social hardships to third parties of which they are deliberately being
kept in the dark about but from which the companies are profiting in the
sense of charging them for the types and quality of services that they
thought they were contracting for but were not getting.  At minimum, maybe
the companies should be forced to return the payments of their customers who
thought that they were contracting for private communications avenues free
from interception without their knowledge or a specific court order, which
they could either fight in a courtroom or terminate service because of.  

I guess I fail to see any difference between holding the telcoms responsible
for complying with an unlawful law and holding soldiers responsible for
following illegal orders from superiors even though the orders have been
justified by a law allowing them as in cases of war crimes where a national
law allows for such action although those acting in compliance with that law
are held accountable as war criminals.

Well, that's the problem.  In such instances the small-fry soldiers should
NOT be held accountable, or they should be held significantly LESS
accountable then the officers who gave the orders and the government
officials who gave the officers THEIR orders.  What happens instead, on the
rare occasions when anyone is punished at all, is that the small-fry
soldiers are scapegoated, and the Big Shots get away scot free.  That seems
to be what's happening here, though the telecoms are not exactly "small-fry
soldiers".  Our legislators are debating whether to hold liable the very
institutions whom THEY, the legislators, ordered to break the law.  Or
rather, the telecoms did NOT break the law, because the legislature CHANGED
the fucking law.


>To be sure, the telecoms are not war criminals (maybe they are given they
were >involved in a war against terror); but they still might be common
criminals - after >all there were many libraries and other institutions that
refused to comply with the >government requests under FISA and challenged
the government rather than >voluntarily acting as government agents.

That's fine and commendable.  But what about the libraries who complied?
Should we be able to sue the libraries?

I think this whole debate is really about creating liability for "deep
pockets" whom our beloved attorneys can then sue on a contingency basis and
make billions, like they did with the tobacco lawsuits.   I cant see where
it's about any sort of genuine justice for ordinary citizens at all.




From: peace-discuss-bounces at lists.chambana.net
[mailto:peace-discuss-bounces at lists.chambana.net] On Behalf Of John W.
Sent: Friday, June 27, 2008 5:13 AM
To: C. G. Estabrook
Cc: Peace-discuss
Subject: Re: [Peace-discuss] Obama's perfidy on FISA

 

Let's try to break this issue down in simple terms.  Maybe I'm not
understanding something.

If I understand it correctly, the telecoms didn't initiate illegal
wiretapping or spying all on their own.  They were ordered to do it by the
government, under FISA and some national security rationale.  The
legislative branch was complicit with the executive branch.  The telecoms
complied.

What would be the point of the legislative branch now turning around and
holding the telecoms liable or responsible for a constitutional violation
that it, the legislative branch, was complicit in?  Isn't it more important
to restore our constitutional rights than to create some legal liability for
telecoms?  

I've never understood this whole issue of immunity or no immunity for the
telecoms.  I hope someone can explain it to me.



On Wed, Jun 25, 2008 at 8:22 PM, C. G. Estabrook <galliher at uiuc.edu> wrote:

[Glenn Greenwald has a detailed account of Obama's going back on his pledge
to oppose a free pass for illegal spying
<http://www.salon.com/opinion/greenwald/>  (putting him to the right of our
Republican Congressional representative). Here's a bit of it.  --CGE]


Greg Sargent reports on Obama's latest FISA comments from today and his
explanation as to how he can support a bill with telecom amnesty when he
previously vowed to filibuster any such bill. Obama explained, in essence,
that he won't jeopardize our National Security in order to hold telecoms
accountable under the rule of law ("My view on FISA has always been that the
issue of the phone companies per se is not one that override the security
interests of the American people"). Apparently, we can't be safe unless we
immunize telecoms. Dick Cheney couldn't have said it any better himself.

Obama's comments today will undoubtedly please the likes of this typical
anonymous "senior Democratic lawmaker" -- quoted in a Wall St. Journal
article documenting Obama's drift to the Right -- who is too cowardly to
attach his name to his comments:

"I applaud it," a senior Democratic lawmaker said. "By standing up to
MoveOn.org and the ACLU, he's showing, I think, maybe the first example of
demonstrating his ability to move to the center. He's got to make the center
comfortable with him. He can't win if the center isn't comfortable."

That's the sickly mentality dominating the Democratic Party: Democrats must
stand up not to George Bush, the Iraq War and rampant lawlessness, but
rather, to the ACLU. That's exactly why they are currently in the process of
trampling upon core civil liberties and the rule of law. That's how you
stand up to the ACLU and show how Tough and Centrist you are.


[But, "Would you rather have McCain?" Thus our political system's good
cop/bad cop  set-up is supposed to mean that we're not to be able to oppose
government lawlessness.  And Obama plays his part.  --CGE]

 

 

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