Yesterday was a day that will live in infamy due to the vote in the House of non-Representatives for FISA legislation that cripples the Fourth Amendment to the Constitution and also enables Congress to usurp the powers of the Judicial Branch by granting retroactive immunity to the telecommunication providers that assisted with the so-called Terrorist Surveillance Program. Quisling Democrats are calling this legislation a compromise, but that is only true in the sense that they have needlessly compromised the Constitution due to cowardice and shallow political considerations. An analysis of the vote quickly reveals that the minority Republicans still control the debate in Congress.
I have posted this comment elsewhere, and it has now been reduced to a whimper in the wilderness, but there is neither a legal justification nor a moral justification for attempts to insulate the telecommunication providers, that assisted with the illegal Terrorist Surveillance Program, from any damage that would ensue if it is ultimately determined in Federal Court that these telecommunication providers did not receive adequate legal authorization from the Bush Administration before these telecommunication providers released access of customer's electronic communications and other information to the Federal government. Director of National Intelligence Mike McConnell laments that "those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits", but the myth of telecommunication providers as victims in this soap opera is a falsehood wrapped in sentimental twaddle, and this is evident to anyone who thinks for a moment about the vast array of legal resources employed by corporations when they are litigating against Federal and State agencies or when they are lobbying Congress to reduce taxes and eliminate regulations. The teary-eyed homily about the telecommunication providers merely doing their patriotic duty lost some of its emotional appeal when it was revealed in January 2008 that one of these telecommunication providers temporarily pulled the plug on surveillance due to a delay in payment by the government.
Some people have commented that the telecommunication providers that assisted with the Terrorist Surveillance Program may not have done anything illegal based on interpretation of Title 50 U.S.C. Section 1802, Title 18 U.S.C. Section 2511(2)(a)(ii)(B), or Title 18 U.S.C. Section 2702(b)(8) and Title 18 U.S.C. Section 2702(c)(4). Although the complete answer is not known for certain, testimony to the Senate Judiciary Committee on May 15, 2007 by former Deputy Attorney General James Comey, and testimony to the Senate Judiciary Committee on October 2, 2007 by former Assistant Attorney General (for the Office of Legal Counsel) Jack Goldsmith, indicates that the certifications by the Justice Department to the telecommunication providers did NOT meet the requirements outlined in Title 50 U.S.C. Section 1802 or Title 18 U.S.C. Section 2511(2)(a)(ii)(B), at least for most of the period during which the Terrorist Surveillance Program was operative. The Bush Administration has promulgated some tortured legal rationales, but it is a legal maxim that words in a legal statute have their plain meaning unless the statute provides for an alternative meaning. The potentially applicable exceptions to prohibited disclosures in Title 18 U.S.C. Section 2702 are specifically for life-threatening emergencies, and it would be impossible to establish that the necessary emergency conditions existed for all of the communications that were intercepted by the intelligence agencies throughout the duration of the Terrorist Surveillance Program.
Official and unofficial spokespersons for the Bush Administration have issued dire warnings that the telecommunication providers that assisted with the Terrorist Surveillance Program will not be willing to co-operate with legal electronic surveillance if these telecommunication providers are not granted immunity from approximately 40 lawsuits that have been filed against them. To help simplify the simple-minded argument advanced by defenders of the Terrorist Surveillance Program, we (through our elected representatives in Congress) are being requested to grant retroactive legal and financial immunity to the telecommunication providers for illegal activity in which they may have engaged by assisting with the Terrorist Surveillance Program, and in return these telecommunication providers will agree to honor legal court-ordered warrants. But, heaven forfend, if retroactive legal immunity is not granted for illegal activity in which the telecommunication providers may have engaged by assisting with the Terrorist Surveillance Program, there is a veiled threat that these telecommunication providers will engage in additional illegal activity by refusing to honor legal court-ordered warrants. Now that certainly sounds reasonable. But seriously folks, the Bush Administration is primarily concerned with preventing the public and potential plaintiffs from discovering the extent of the illegal activity in which Bush Administration officials were engaged, and this yeoman effort to provide immunity for the telecommunication providers that assisted with the Terrorist Surveillance Program is just the Bush Administration's method of enlisting Congress in the obstruction of justice.
I have written a couple of articles for OpEdNews about the lies and other irrational analyses that have been used to manipulate public opinion against the Constitution and the rule of law, and I contacted many members of Congress over the past nine months to advocate my views, but there is practically no chance of salvaging the situation in the Senate. Now that Barack Obama has secured the Democratic Presidential nomination, he also has revealed that he is not interested in defending the Constitution. The lone Congressman from Vermont (my home State) and Vermont's two Senators have been among the minority in Congress who have resisted the urge to trash our Constitution while their colleagues wet themselves. Please ask your non-representatives to turn out the lights as they exit the Halls of Congress to campaign for re-election.
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ABOUT THE AUTHOR: I am retired after working 33 years as a claims representative for the Social Security Administration, and I am a card-carrying member of the ACLU.
In response to yesterday's vote in the House of non-Representatives for Republican-friendly FISA legislation, John McCain stated: "For months, House Democrats, the ACLU, and the trial lawyers have held up legislation to modernize our nation's terrorist surveillance laws. Today, the House passed a compromise bill to end this impasse. While I would have preferred to see the Senate bill enacted, which I voted for earlier this year, I am pleased Congressional leaders and the Administration were able to reach an agreement to reform our current surveillance law and not let FISA expire in August." As Senator McCain may or may not know, depending on the progression of his dementia, the FISA legislation passed by the House of non-Representatives amends the FISA law that was NOT scheduled to expire in August and that was only amended (NOT replaced) by the unconstitutional Protect America Act of 2007 (which, thankfully, expired in February 2008, but which allowed authorizations for intercepted communications to continue for up to one year after such authorizations were granted).
After yesterday's vote in the House of non-Representatives, Barack Obama stated: "Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses." As Senator Obama knows, this legislation makes it clear that the President can circumvent the law and the Constitution with no prospect of being held accountable by Congress or by the Department of the Obstruction of Justice (DOJ), and I will go out on a limb by predicting that Senator Obama will not work up a sweat to help remove the immunity provision for telecommunication providers from the House bill.
by
Blaine Kinsey (6 articles, 0 quicklinks, 0 diaries, 22 comments)
on Saturday, June 21, 2008 at 3:02:35 PM
Thank you for this well-written piece, Blaine. and for exposing Obama's acquiescence with gutting FISA protections while protecting the criminal corporations that spied on US citizens without warrant.
Whenever our corporate sponsored Congress congratulates itself on its "bipartisan" passage of something, we know that something awful just happened. In today's reality, "bipartisanship" means they all share an interest in some corporate-friendly piece of legislation.
We the People are surely left to face Frederick Douglass' wisdom:
The limits of tyrants are prescribed by the endurance of those whom they oppress.
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Rady Ananda (95 articles, 245 quicklinks, 19 diaries, 693 comments)
on Saturday, June 21, 2008 at 9:21:30 PM
I read your thoughtful article about this issue before submitting my most recent article about FISA and the sad demise of the rule of law. Having followed this issue closely since December 2005, I am depressed by the prospect that the terrorists in the Bush Administration (including The Decider) probably will never be held accountable for their crimes. However, some of my nerves are still twitching.
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Blaine Kinsey (6 articles, 0 quicklinks, 0 diaries, 22 comments)
on Saturday, June 21, 2008 at 10:02:36 PM
Maybe we can try a democracy, a true democracy where the people always maintain the right to trump Congress, in fact, let's just replace Congress with the People's Chamber. Instead of allowing the powerful to select "representatives" and allowing them to not represent without any recourse, we'll just get rid of the House of Representatives all together and we will just "do it ourselves".
We will vote on the issues - ourselves. The People will have the exclusive check on the executive and Senate and the right to remove any of them with a simple majority.
Now tell me again, why is it that we need "Representatives"? Is it that our leaders are too afraid we would, I don't know, vote for our own interests and the interests of the People?
This "representative" republic isn't working. The Majority are not represented while the Elite Minority and Ownership classes do whatever they damn well please.
We might need to take Our Government back and start all over again.
Congress completely failed the American People yet again, they should all resign in mass, the House is Corrupt.
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August Adams (10 articles, 0 quicklinks, 1 diaries, 429 comments)
on Saturday, June 21, 2008 at 9:35:38 PM
or even crippled the conspiracy to overthrow this government by those forces who view our system of government and us as cumbersome to their fascist plans is still very much alive and in high gear.
I don't know how many times I've written these words before but it's been more than a few, but it's time we stopped counting on this corrupt system. We can't count on our government, enforcement, lawmakers, our courts our media, (this story was buried on page 8 in a throw-a-way 4' column in my paper), we are alone against a machine that was formed over 200 years to murder us.
Letters, emails and phone calls are all but a joke. Still do them, but basically they're a waste of time and effort. Gangsters don't read and don't care what you write. What needs to be done is a continuous citizen action in making a physical presents in offices of our representatives, citizen presents at congress and White House to a scale that would influence, and/or disrupt government at work.
If there are no anti-war/watch-dog groups in your area - form one. If there are join them and push to have a physical presents at your reps offices everyday. When possible bus loads of members should stage press conferences. Leaders of these groups should put aside egos and contact and coordinate with other like groups to increase the amount of people that could bombard your representatives with our message. Targeting companies for boycotts and protests that are also perpetuating war, and military recruitment stations also need to have a physical presents.
These things must be done. Everything else, short a revolution will not work. Unless we get off our butts we're just blowing in the wind. Everything else short of all out revolution is not working and won't work against opposing forces of corporate America.
We are at a very critical point. We're far behind where we need to be and they're far ahead. If these actions are not taken soon it will be too late real soon, if it isn't already. So get off your butts and do something now!
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Mr M (4 articles, 0 quicklinks, 9 diaries, 1254 comments)
on Sunday, June 22, 2008 at 8:31:23 AM
