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The FISA Amendment being voted on Will NOT Throw Out 40 Pending Lawsuits against Telecoms

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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 12:44 PM
Original message
The FISA Amendment being voted on Will NOT Throw Out 40 Pending Lawsuits against Telecoms
Edited on Sun Jul-06-08 01:11 PM by berni_mccoy
As kpete posted today, http://journals.democraticunderground.com/kpete/6582, spying on U.S. Citizens that was warrantless and bypassing FISA, started before 9/11. That means the NSA started their program before the first post-9/11 FISA Amendment, the Patriot Act, and the following FISA Amendment, the Protect America Act, which granted broad, domestic spying powers to the Administration. The PAA has expired and that is why there is such a push to pass the current FISA Amendment of 2008. However, this Amendment adds several beneficial accountability clauses and removes several broad power clauses from the PAA.

But the large controversy about the current FISA bill has been its granting of retroactive immunity for U.S. Telecom companies against civil (not criminal) lawsuits. The controversy is heightened with the fact that Senator Obama said he would oppose retroactive immunity against illegal activities and that he currently supports the current FISA Amendment, admitting that he feels it is a necessary compromise. The left side of the blogosphere, including many here at Democratic Underground, have seemed zealous in their attacks on Obama for this. But let's consider what the law truly states.

The full text of the Amendment can be found here (PDF format): http://www.politico.com/static/PPM104_080619_fisapromis...

First, it does grant retroactive immunity for telecoms. Title II of the Amendment modifies Title VIII of FISA to include immunity for telecom companies against civil actions if the telecom company acted in a certified manner. The obvious question that follows is, what certification is required? Sec. 802 of the Amendment answers this question (starting on page 88 of the PDF document linked above). There are 5 protective clauses that allow a telecom to avoid defending against a civil action, as listed below (I'll list out of order to cover the easy ones first):

1. Providing assistance to the NSA was authorized by a court order (FISA court) (which the pre-911 doesn't qualify)

4. The monitoring occurred between Sept. 11, 2001 and Jan 17, 2007 (which the pre-911 spying didn't)

5. The company didn't provide the assistance (not true for AT&T or Verizon in this case)

3. This one's tricky, as it pulls in language from the PAA. Here is the text it pulls in from PAA, section 105B(e)
`(e) With respect to an authorization of an acquisition under section 105B, the Director of National Intelligence and Attorney General may direct a person to--

`(1) immediately provide the Government with all information, facilities, and assistance necessary to accomplish the acquisition in such a manner as will protect the secrecy of the acquisition and produce a minimum of interference with the services that such person is providing to the target; and

`(2) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the acquisition or the aid furnished that such person wishes to maintain.

This means the Director of NI and the AG must authorize the spying and the telecoms in question must have such an order in writing. The funny thing about this, is that there was no such thing as the Director of National Intelligence before 9/11. That branch of government was formed in April of 2005. (this clause does not apply to telecoms spying before 9/11)

And finally, protective clause 2:
2. This clause refers to a section of the current FISA bill that allows individuals (or telecoms) to hand over requested information if the AG certifies it as an emergency and there are grounds for a court order. Under the original FISA, this meant that the AG had up to 3 days to file for the court order or the evidence was invalid. The current amendment extends that to a week given the load on the FISA court. It doesn't matter, as the protection against a civil suit would require that the AG certified it in writing then and had applied for the court order.

Now, I'm not a lawyer, so I'll leave the final interpretation up to the lawmakers and the courts. However, it seems pretty clear to me that the immunity against civil action, granted by this Amendment that has stirred up so much controversy is pretty narrowly defined. The aiding telecoms must have a court order or a get-out-of-lawsuit-free card with severely limited circumstances that can be reviewed by the court presiding over one of these pending 40 civil cases. The FISA bill does not protect companies (or government officials for that matter) against criminal abuse of the FISA law, and it seem pretty clear from kpete's post this morning, that the pre-911 solidly falls in that category.

Obama called it a bill that he would not author but reluctantly agrees to out of necessary compromise. However, the compromise seems in line with Obama's original pledge. No retroactive immunity for telecoms who engaged in illegal spying.

ON EDIT: to those who think the AG will certify pre-9/11 domestic spying, I doubt Ashcroft will be signing any such papers. Ashcroft deemed it illegal once he found out about. It's the reason he resigned. See my response here below: http://www.democraticunderground.com/discuss/duboard.ph...
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madfloridian Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 12:50 PM
Response to Original message
1. Mark Klein thinks it does.
http://journals.democraticunderground.com/madfloridian/...

"Mark Klein, the retired AT&T engineer who stepped forward with the technical documents at the heart of the anti-wiretapping case against AT&T, is furious at the Senate's vote on Wednesday night to hold a vote on a bill intended to put an end to that lawsuit and more than 30 others.

"Wednesday's vote by Congress effectively gives retroactive immunity to the telecom companies and endorses an all-powerful president. It’s a Congressional coup against the Constitution. The Democratic leadership is touting the deal as a "compromise," but in fact they have endorsed the infamous Nuremberg defense: "Just following orders." The judge can only check their paperwork. This cynical deal is a Democratic exercise in deceit and cowardice."
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 12:51 PM
Response to Reply #1
2. Anyone who frames it in the context of Nazi Germany loses credibility on his legal argument.
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nadinbrzezinski Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 01:11 PM
Response to Reply #2
9. Nuremberg is a legal precedent
AND IT CAME AFTER THE NAZIS WERE DEFEATED

Ironically, it was written by us... and a chief justice who served as one of the judges
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 01:12 PM
Response to Reply #9
10. Which has no relevance here. Please, stop this nonsense before you lose more credibility.
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nadinbrzezinski Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 01:59 PM
Response to Reply #10
14. You were the first one to imply that making a reference to Nuremberg
was a nazi reference

You don't like to be corrected, don't make such BASIC mistakes

And you know what Benie... credibility with you, an internet shadow, matters little to me
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:00 PM
Response to Reply #14
15. Nuremberg *is* about the Nazi's. DUH.
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nadinbrzezinski Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:06 PM
Response to Reply #15
16. IT IS A LEGAL PRECEDENT DUH!!!!!!!
Edited on Sun Jul-06-08 02:07 PM by nadinbrzezinski
It could have easily been called the TOKYO precedent, but the IMT formed first at NUREMBERG DUH!

Oh sorry, fear I have to do this for YOU

IMT= International Military Tribunal
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:15 PM
Response to Reply #16
19. It has nothing to do with FISA except when desperate failed arguments try to label FISA as NAZI-like
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nadinbrzezinski Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:10 PM
Response to Reply #19
29. I am not doing that, but the NUREMBERG PRECEDENT is a LEGAL PRECEDENT
in both National and International Law.

I know this is difficult for some to get this... now if in your eyes USING A LEGAL PRINCIPLE that is also part of the UCMJ is making it nazi like in your eyes... I guess the US Military are also nazis... add to the list their counterparts across NATO and OTHER allied forces where it is part of the rules of their respective militaries

DUH
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:34 PM
Response to Reply #29
36. Nuremberg has no application to FISA as precedent. Do I get Points if I TYPE IN ALL UPPERCASE? DUH
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nadinbrzezinski Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 10:04 PM
Original message
Once again READ the posts
and believe it or not, not that you care to open your eyes... once we finally, as a nation, try many of these folks for crimes against humanity.... and that will happen some day

You can bet your sweet ass that Nuremberg will be a precedent

FISA... yes, even FISA... not the specific legislation, but the fact that industries participated in illegal activities on the order of the state

IG Farben comes to mind

It does not matter how much history we point to you

At this point what we have reached is the same moment that Germans reached, or Chileans, or Argentineans, or Russians... to live a moral live in an immoral society

That is where we are right now. I know my choice... I guess I know yours and they are not quite the same
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 10:51 PM
Response to Original message
92. "We have reached is the same moment that Germans reached...I know my choice... I guess I know yours"
No, you don't. And again, you won't sway anyone to your perspective for framing people as Nazis or Nazi sympathizers. You are completely off the deep end if you think I am anything but a die-hard liberal. We are on the same side. You just want to believe what you want to believe is right and you are overzealous in your point so there is no need for me to do anything but say good day to you.
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nadinbrzezinski Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 11:07 PM
Response to Reply #92
95. Were chileans Nazis? No... were the Argenitinais? no
Were the russians? No

Were the Italians?

No

They had one thing common though

And you are purposely missing this by a mile

They were authoritarian societies

Guess where we are?

Have a good life.

I know your choice... oh and free hint, it has nothing to do with your particular personal political ideology

Read Niemuhler on the subject

The title is... moral man in an immoral society.




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nadinbrzezinski Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 10:04 PM
Response to Reply #36
88. Once again READ the posts
and believe it or not, not that you care to open your eyes... once we finally, as a nation, try many of these folks for crimes against humanity.... and that will happen some day

You can bet your sweet ass that Nuremberg will be a precedent

FISA... yes, even FISA... not the specific legislation, but the fact that industries participated in illegal activities on the order of the state

IG Farben comes to mind

It does not matter how much history we point to you

At this point what we have reached is the same moment that Germans reached, or Chileans, or Argentineans, or Russians... to live a moral live in an immoral society

That is where we are right now. I know my choice... I guess I know yours and they are not quite the same
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merh Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:49 PM
Response to Reply #1
47. Mark Klein is an engineer
He seems to be missing the language in the proposed legislation that states that the action was legal. How can the action be legal if it targeted US citizens and allowed their communications to be monitored without probable cause? The blanket application of the surveillance makes it virtually impossible for the AG to certify that the actions were legal. The legislation says that US citizens cannot be intentionally targeted without compliance with the 4th amendment. Again, what probable cause is there to surveil and monitor an entire region of the nation?



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rhett o rick Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:01 PM
Response to Reply #47
57. So? Some of my best friends are engineers. EQUAL RIGHTS FOR ENGINEERS. nm
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merh Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:04 PM
Response to Reply #57
59. Engineers are good folks
They normally don't do well in prosecuting or defending cases in court unless of course they have dual roles, like lawyer/engineer.

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rhett o rick Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:07 PM
Response to Reply #59
61. They also don't get picked for many juries. I speak from experience. nm
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merh Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:08 PM
Response to Reply #61
65. It depends on the action.
Oh, and I never get picked either and I am not an engineer.

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Danieljay Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 12:52 PM
Response to Original message
3. Please don't confuse us with the facts. Obama can't be trusted. McCain is the clear choice.
:sarcasm:
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uponit7771 Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 01:04 PM
Response to Reply #3
6. heh heh...
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skooooo Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:48 PM
Response to Reply #3
45. no doubt
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 01:00 PM
Response to Original message
4. It was carefully written to allow the AG to toss out pending civil suits,
Edited on Sun Jul-06-08 01:27 PM by dailykoff
as you admit in your second-to-last paragraph (after the editing you just did, third-to-last paragraph), so thanks for another intentionally deceptive post.
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 01:06 PM
Response to Reply #4
8. I doubt the telecoms will get Ashcroft to sign such a certification. He deemed it illegal pre-911
Edited on Sun Jul-06-08 01:07 PM by berni_mccoy
http://www.washingtonpost.com/wp-dyn/content/article/20...

On the night of March 10, 2004, as Attorney General John D. Ashcroft lay ill in an intensive-care unit, his deputy, James B. Comey, received an urgent call.

White House Counsel Alberto R. Gonzales and President Bush's chief of staff, Andrew H. Card Jr., were on their way to the hospital to persuade Ashcroft to reauthorize Bush's domestic surveillance program, which the Justice Department had just determined was illegal.

In vivid testimony to the Senate Judiciary Committee yesterday, Comey said he alerted FBI Director Robert S. Mueller III and raced, sirens blaring, to join Ashcroft in his hospital room, arriving minutes before Gonzales and Card. Ashcroft, summoning the strength to lift his head and speak, refused to sign the papers they had brought. Gonzales and Card, who had never acknowledged Comey's presence in the room, turned and left.

The sickbed visit was the start of a dramatic showdown between the White House and the Justice Department in early 2004 that, according to Comey, was resolved only when Bush overruled Gonzales and Card. But that was not before Ashcroft, Comey, Mueller and their aides prepared a mass resignation, Comey said. The domestic spying by the National Security Agency continued for several weeks without Justice approval, he said.


It's the reason why Ashcroft resigned. And, calling me "intentionally deceptive"? Shame on you. :(
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 01:14 PM
Response to Reply #8
11. Irrelevant. Read the section you omitted from the text of the bill
you posted earlier.
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 01:21 PM
Response to Reply #11
12. WTH are you talking about. I posted a link to the entire Amendment.
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:09 PM
Response to Reply #12
28. I'm talking about section 802, "Procedures for Implementing Statutory Defenses"
that starts on page 88:

21 ‘‘SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY
22 DEFENSES.
23 ‘‘(a) REQUIREMENT FOR CERTIFICATION.—Notwith-
24 standing any other provision of law, a civil action may not
25 lie or be maintained in a Federal or State court against
1 any person for providing assistance to an element of the
2 intelligence community, and shall be promptly dismissed,
3 if the Attorney General certifies to the district court of
4 the United States in which such action is pending that—
5 ‘‘(1) any assistance by that person was provided
6 pursuant to an order of the court established under
7 section 103(a) directing such assistance;
8 ‘‘(2) any assistance by that person was provided
9 pursuant to a certification in writing under section
10 2511(2)(a)(ii)(B) or 2709(b) of title 18, United
11 States Code;
12 ‘‘(3) any assistance by that person was provided
13 pursuant to a directive under section 102(a)(4),
14 105B(e), as added by section 2 of the Protect Amer-
15 ica Act of 2007 (Public Law 110-55), or 702(h) di-
16 recting such assistance;
17 ‘‘(4) in the case of a covered civil action, the as-
18 sistance alleged to have been provided by the elec-
19 tronic communication service provider was—
20 ‘‘(A) in connection with an intelligence ac-
21 tivity involving communications that was—
22 ‘‘(i) authorized by the President dur-
23 ing the period beginning on September 11,
24 2001, and ending on January 17, 2007;
25 and
1 ‘‘(ii) designed to detect or prevent a
2 terrorist attack, or activities in preparation
3 for a terrorist attack, against the United
4 States; and
5 ‘‘(B) the subject of a written request or di-
6 rective, or a series of written requests or direc-
7 tives, from the Attorney General or the head of
8 an element of the intelligence community (or
9 the deputy of such person) to the electronic
10 communication service provider indicating that
11 the activity was—
12 ‘‘(i) authorized by the President; and
13 ‘‘(ii) determined to be lawful; or
14 ‘‘(5) the person did not provide the alleged as-
15 sistance.

http://www.politico.com/static/PPM104_080619_fisapromis...

That part.
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:39 PM
Response to Reply #28
41. That's what my OP is about. Get a clue and read my post before you attack me.
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:47 PM
Response to Reply #41
44. No, your OP is an attempt to spin away the deception in your title
which is contradicted by Obama's own words on Thursday:

I know that the FISA bill that passed the House is far from perfect. . . . It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration's program of warrantless wiretapping.

http://my.barackobama.com/page/community/post/rospars/g...

Bye now. :hi:
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MarjorieG Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:07 PM
Response to Reply #4
17. Want the costs of civil suits to be passed on? I believe in redress in courts, but iffy on this.
If we find manipulation/gain with information, basic criminality, we have redress. Difficult to prosecute, I think, when the gov't said it was legal (even if wasn't). I always thought this was database collection for profit, among other unsavory dishonesties.
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:17 PM
Response to Reply #17
21. The cost of the lobbying effort is probably higher.
Armies of lawyers, lobbyists, gifts, bribes, and donations of all types don't come cheap. So I'd say that's the least of our worries and in any case I'd be happy to pay my share of getting the illegal WH spy operation into serious litigation.
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merh Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:51 PM
Response to Reply #4
49. Even if the AG certifies, the plaintiffs can seek review by the
judicial court and/or the court can review the certification on its own to determine if the laws were followed, to determine that no constitutional rights were infringed. Additionally, the dismissal is subject to appeal and again, the certification reviewed.

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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:08 PM
Response to Reply #49
64. The "certificates" can be reviewed. Not the probable cause. (n/t)
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merh Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:17 PM
Response to Reply #64
73. Provide me the language from the legislation you are relying upon.
I believe you are wrong.

There is the certification required by the FISA court that the surveillance is necessary and lawful. The law is clear, the agencies shall not violate the 4th amendment rights of US citizens and the courts shall not authorize the surveillance without the probable cause as required by the 4th amendment. Think of this certification as the affidavit required by a criminal court when asked to issue a search warrant.

Then there is the certification that the surveillance conducted should be afforded the statutory defenses as ascribed in Section 802. That certification is subject to judicial review, to review by the district courts hearing the civil litigation, and that review includes all things the court deems necessary to make a decision, to include all things required to certify to the FISA court that the surveillance should be allowed, to include the review of classified materials and state secrets, even if that review is only in camera.

‘(b) Judicial Review-

‘(1) REVIEW OF CERTIFICATIONS- A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

‘(2) SUPPLEMENTAL MATERIALS- In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).


You are confusing the two (2) different certifications provided for in this legislation.

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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:19 PM
Response to Reply #73
74. He won't. He'll just keep repeating that you are wrong and he is right and then spamming
with either an Obama quote or the entire text of section 802 of which I have dissected in my OP.
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merh Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:23 PM
Response to Reply #74
75. He confuses the two types of certifications that are provided for
in this legislation. It is clear he doesn't understand the bill and parroting of others is all he has.

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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:24 PM
Response to Reply #75
76. We could accuse him of intentional deception, which is what he is all to quick to do to you and I
I'm frankly tired of it, even though I've alerted the responses where he does that. Extremely annoying.
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merh Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:28 PM
Response to Reply #76
77. In another thread I was accused of being an operative for the other
Edited on Sun Jul-06-08 04:30 PM by merh
side. LOL, it is absolutely insane how folks react to independent and critical thought. I've been called a bamabot and I disagree with Obama, I don't see immunity in this bill. I see basic defenses that have to be established, like all defenses in civil litigation.

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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:32 PM
Response to Reply #77
78. We should join a club. It looks like there are only 5 of us. If people just took a moment to read
Edited on Sun Jul-06-08 04:32 PM by berni_mccoy
my journal, they'd see I'm a long-time DUer with a solid track record. Accusing us of being intentionally deceptive or a repuke operative is just ludicrous and you have to wonder if these people really are the trolls spreading doubt and fear (like the republicans always do).
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merh Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 05:19 PM
Response to Reply #78
82. it does get annoying, doesn't it
But heck, I won't apologize for being able to think for myself.

Wish more would try.

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TexasObserver Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 01:00 PM
Response to Original message
5. You're correct. Telecom immunity is about CIVIL immunity, not CRIMINAL immunity.
And that portion of it is not a fourth amendment issue, as much as our amateur con law professors want to make it one.

The government and those in it who violated the fourth amendment by using telecoms can and should be investigated and criminally prosecuted. The telecom immunity doesn't change that.

Like Obama, I don't like all the provisions of the proposed FISA law. I don't want to see the telecoms given immunity. But it's one issue, and it's not caving on the 4th amendment.
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rhett o rick Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:06 PM
Response to Reply #5
60. Yes it is only one issue. But I believe it is caving on the 4th Ammend.
Why not pass the bill without this one issue? Seems to me that someone (Bush/telecoms) want this one issue very very badly.

I am not willing to compromise on violation of the Constitution. No one in our system of government, can authorize violation of the Constitution.
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uponit7771 Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 01:04 PM
Response to Original message
7. might toss out the lawyers who are in it for the money though
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TexasObserver Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 01:22 PM
Response to Reply #7
13. Those lawyers "in it for the money" are the ones rooting out the telecom misdeeds.
Those lawyers are Democrats, not Republicans.

Or were you talking about the lawyers for the telecoms, since I'm pretty sure they're in it for the money.
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madfloridian Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:09 PM
Response to Original message
18. The AT & T whistleblower disagrees. It will throw out the suits against that company
http://journals.democraticunderground.com/madfloridian/...

"Mark Klein, the retired AT&T engineer who stepped forward with the technical documents at the heart of the anti-wiretapping case against AT&T, is furious at the Senate's vote on Wednesday night to hold a vote on a bill intended to put an end to that lawsuit and more than 30 others.

"Wednesday's vote by Congress effectively gives retroactive immunity to the telecom companies and endorses an all-powerful president. It’s a Congressional coup against the Constitution. The Democratic leadership is touting the deal as a "compromise," but in fact they have endorsed the infamous Nuremberg defense: "Just following orders." The judge can only check their paperwork. This cynical deal is a Democratic exercise in deceit and cowardice."

And from Wired:

http://blog.wired.com/27bstroke6/2008/06/att-whistleblo...

"Mark Klein, the retired AT&T engineer who stepped forward with the technical documents at the heart of the anti-wiretapping case against AT&T, is furious at the Senate's vote on Wednesday night to hold a vote on a bill intended to put an end to that lawsuit and more than 30 others."

Maybe someone should tell him he doesn't know what he is talking about. :shrug:
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:16 PM
Response to Reply #18
20. 2nd time you've tried to make that argument in this thread. This time is just as wrong as the first.
Mark Klein is not a lawyer.
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madfloridian Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:38 PM
Response to Reply #20
23. I never said he was a lawyer??
?
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:53 PM
Response to Reply #23
26. You're quoting his technical opinion as an engineer as grounds for a legal argument.
It doesn't make any sense. Just because he says it is so doesn't make it so.
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madfloridian Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:19 PM
Response to Reply #26
32. No, I was not doing that.
:shrug:
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:38 PM
Response to Reply #32
39. "Mark Klein, the retired AT&T engineer" -- yep, you were.
Where is his legal analysis? He just rants that it was wrong. He can do that, but it's not an argument. Yes, AT&T broke the law. No one is arguing that here. So why are you bringing him up.

You haven't even considered the basis of my argument: The FISA Amendment of 2008 offers no protection to those companies who broke the law, especially before 9/11. They won't get AG sign-off as they would need that from Ashcroft, who knew nothing about the program and labeled it as illegal.
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AZBlue Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 11:07 PM
Response to Reply #18
94. Mark Klein obviously DOESN'T know what he's talking about.
So why quote him?
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tkmorris Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:37 PM
Response to Original message
22. Here's why I know you're wrong
You parse an awful lot of words in interesting ways, and I could go into your arguments and debate each point you make, back and forth, ad nauseum, but I won't. I don't need to.

Back away from all the text, all of the deliberately obtuse legalese, for just a moment and ask yourself this: Why is that portion of the bill pertaining to telecoms in there at all? The answer is simple really. It's there because the telecoms want to be financially immune to civil lawsuits brought against them and have lobbied successfully to have Congress provide that protection. You really need not consider anything more than that. Do you hear any telecoms bitching that the bill doesn't do that? No you don't. They are happy as clams with this bill, and that is why *you* and *I* should not be.
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:54 PM
Response to Reply #22
27. You are the only person 'parsing' words in 'interesting ways'. You provide no evidence
for your statements or opinions. You just want to be right and you want to be angry. That is your choice.
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tkmorris Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:15 PM
Response to Reply #27
71. There is no anger in my post, nor parsing
Words have meaning, and they are important. The only part you have correct is that I DO want to be right. It's almost an obsession with me. However, unlike some, I do not decide what I want to be true first, then try to alter reality to make my position seem correct. Instead, I try very hard to objectively analyze all that I see to make sure that the conclusions I draw are in fact the right ones.

I stand behind my analysis. That language is in the bill specifically because it DOES in fact shield the telecoms. There is no other reason for it to be there. It is did not accomplish that fact, the telecoms would be lobbying heavily to strengthen it. They aren't. What does that tell you?
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:17 PM
Response to Reply #71
72. You have provided no analysis or rebuttal of my points. You are welcome to do so, but don't just say
you are right. Prove it.
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madfloridian Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:41 PM
Response to Original message
24. Will scuttle 40 lawsuits
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/0...

"Lawsuits would be scuttled
The bill would also doom approximately 40 lawsuits, now before a federal judge in San Francisco, in which customers have accused telecommunications companies of illegally collaborating in the surveillance program without court orders. To dismiss the suits, the government would need only to declare that President Bush authorized the alleged assistance."


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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 02:52 PM
Response to Reply #24
25. No legal analysis is provided. Try again.
All the article says is that lawsuits would be scuttled or doomed. They provide no analysis and neither do they quote any.
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nadinbrzezinski Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:14 PM
Response to Reply #25
31. We could provide you with the analysis of actual lawyers who don't agree with you
they are the ones with the JD behind their names... some of them are FINE constitutional scholars

Does not matter

In your reality they don't matter

Have a good day

And when you hear that knock in the door, be happy about it... ok

there are days

:banghead:

GO TEAM!
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:33 PM
Response to Reply #31
34. Present away. I await your evidence and look forward to it. Just remember...
The lawmakers with the JD behind their names have political bias in this. I'd prefer to hear a non-biased legal professional look at the pre-9/11 argument on this as it applies to the civil code. I do not think you will find any legal analysis to date on that aspect of the FISA Amendment.
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nadinbrzezinski Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 10:15 PM
Response to Reply #34
91. We have in the past, and it changes nothing so it is truly
a waste of atoms

But Turley comes to mind, as well as Dean and even some others on the liberal side...

Have a good day
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KittyWampus Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:10 PM
Response to Original message
30. Berni, thanks for doing the heavy lifting on this. There's another DU'er posting nonsense about FISA
all over the place. It's hard to keep up. Hang in there my friend.
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madfloridian Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:21 PM
Response to Reply #30
33. So he is the final authority?
Sorry, if I had known that I would never have argued with him.

Geez...some of us presume to listen to others.

We will know better now.
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:34 PM
Response to Original message
35. OBAMA: "It grants retroactive immunity to telecommunications companies."
Obama on Thursday July 3:

I know that the FISA bill that passed the House is far from perfect. . . . It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration's program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses.

http://my.barackobama.com/page/community/post/rospars/g...

Are you trying to say he was lying?
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:35 PM
Response to Reply #35
37. Koff, koff, koff, why do you immediately jump to the "lying" thing? Can't you recognize that Obama
may be mistaken before you accuse jump to the conclusion that I'm saying anyone is lying?
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:36 PM
Response to Reply #37
38. So you're saying he was wrong.
Edited on Sun Jul-06-08 03:38 PM by dailykoff
Thanks for clearing that up.
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:38 PM
Response to Reply #38
40. No, I'm saying you are.
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:43 PM
Response to Reply #40
42. I haven't repeatedly been shown to misrepresent the facts about this bill. (n/t)
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:49 PM
Response to Reply #42
46. No, but you've repeatedly spam-attacked with baseless arguments spouting nothing but nonsense.
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:52 PM
Response to Reply #46
50. So now Obama's own words are nonsense?
:shrug:
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:53 PM
Response to Reply #50
52. Again, just yours. And your desperate spam-attack on this thread is duly noted.
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:01 PM
Response to Reply #52
58. So Obama's own words are spam. I see. (n/t)
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:08 PM
Response to Reply #58
63. The way you are using them and posting responses to everyone else in this thread is, yes.
Edited on Sun Jul-06-08 04:11 PM by berni_mccoy
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Levgreee Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:44 PM
Response to Reply #35
43. It does grant retroactive immunity.... just for some transgressions though, not all
He said in another statement that it still left them open for criminal lawsuits.

And Berni said in this thread that there was some retroactive immunity.

So I don't see the mistatement of Obama's unless you decide to read that sentence in a certain way.
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:50 PM
Response to Reply #43
48. The thread title, "The FISA Amendment being voted on Will NOT Throw Out 40 Pending Lawsuits
against Telecoms," is false. Section 802 will empower the Attorney General to do exactly that.
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:52 PM
Response to Reply #48
51. Who was the AG BEFORE 9/11? You ignore the entire premise of this post about pre-911
Ashcroft was the AG and he did not know about the program.

He labeled it ILLEGAL.

He would be the one required to sign off on any certification that would grant telecoms immunity before 9/11.

Either get past your own bias on this or stop attacking me and spamming this post.
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:53 PM
Response to Reply #51
53. Ashcroft hasn't been AG for some time.
Bye now.
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:56 PM
Response to Reply #53
54. He was when the pre-911 domestic spying was going on. Telecoms are NOT IMMUNE from that.
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:58 PM
Response to Reply #54
55. The current AG will make the determinations. Read sec. 802. (n/t)
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:07 PM
Response to Reply #55
62. That's not what it says. Here is the evidence that shows prior written consent from AG is required.
Edited on Sun Jul-06-08 04:09 PM by berni_mccoy
This is the last protective clause I covered in my OP. Here is the text:

any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code


And section 2511(2)(a)(ii)(B) states (from http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_0... ):

Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—
(A) a court order directing such assistance signed by the authorizing judge, or
(B) a certification in writing by a person specified in section 2518 (7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,
setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. No provider of wire or electronic communication service, officer, employee, or agent thereof, or landlord, custodian, or other specified person shall disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished a court order or certification under this chapter, except as may otherwise be required by legal process and then only after prior notification to the Attorney General or to the principal prosecuting attorney of a State or any political subdivision of a State, as may be appropriate. Any such disclosure, shall render such person liable for the civil damages provided for in section 2520. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter.


The language behind USC 18 2709(b) also has similar language.

That clearly states that the Telecom must be provided with the written certification prior to the wiretapping.



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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:11 PM
Response to Reply #62
67. That's exactly what it says. Read it:
21 ‘‘SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY
22 DEFENSES.
23 ‘‘(a) REQUIREMENT FOR CERTIFICATION.—Notwith-
24 standing any other provision of law, a civil action may not
25 lie or be maintained in a Federal or State court against
1 any person for providing assistance to an element of the
2 intelligence community, and shall be promptly dismissed,
3 if the Attorney General certifies to the district court of
4 the United States in which such action is pending that—
5 ‘‘(1) any assistance by that person was provided
6 pursuant to an order of the court established under
7 section 103(a) directing such assistance;
8 ‘‘(2) any assistance by that person was provided
9 pursuant to a certification in writing under section
10 2511(2)(a)(ii)(B) or 2709(b) of title 18, United
11 States Code;
12 ‘‘(3) any assistance by that person was provided
13 pursuant to a directive under section 102(a)(4),
14 105B(e), as added by section 2 of the Protect Amer-
15 ica Act of 2007 (Public Law 110-55), or 702(h) di-
16 recting such assistance;
17 ‘‘(4) in the case of a covered civil action, the as-
18 sistance alleged to have been provided by the elec-
19 tronic communication service provider was—
20 ‘‘(A) in connection with an intelligence ac-
21 tivity involving communications that was—
22 ‘‘(i) authorized by the President dur-
23 ing the period beginning on September 11,
24 2001, and ending on January 17, 2007;
25 and
1 ‘‘(ii) designed to detect or prevent a
2 terrorist attack, or activities in preparation
3 for a terrorist attack, against the United
4 States; and
5 ‘‘(B) the subject of a written request or di-
6 rective, or a series of written requests or direc-
7 tives, from the Attorney General or the head of
8 an element of the intelligence community (or
9 the deputy of such person) to the electronic
10 communication service provider indicating that
11 the activity was—
12 ‘‘(i) authorized by the President; and
13 ‘‘(ii) determined to be lawful; or
14 ‘‘(5) the person did not provide the alleged as-
15 sistance.

http://www.politico.com/static/PPM104_080619_fisapromis...
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:12 PM
Response to Reply #67
68. So, I'm right then. Thanks for admitting that.
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dailykoff Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:13 PM
Response to Reply #68
69. Now you're playing games, so I'm out of yet another deceptive thread. (n/t)
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:14 PM
Response to Reply #69
70. You have agreed with my last point and you have failed to show where it says current AG
What are you talking about then?
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rhett o rick Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 03:59 PM
Response to Original message
56. With honest respect, I missed your point. I am slower than the average so help me out.
Are you saying we should support this bill because it doesn't appear (seems to be a difference of opinion on this) to "throw out 40 pending law suits"???

I have kinda simplified it: I don't care if the telecoms can come up with get-out-of-prosecution cards. No-one can authorize a violation of the Constitution. I don't want any loopholes, no matter how tight someone tries to make us think they are.

I basically have one rule of thumb (and feel free to use this if you like): IF KING GEORGE OF BUSH LIKES IT, VOTE AGAINST IT.
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:11 PM
Response to Reply #56
66. No, I'm saying the Bill won't necessarily invalidate the pending 40 lawsuits
If those lawsuits include domestic spying that occured prior to 9/11, then the law suits can not be thrown out by this law.

Should Democrats vote against this? Probably, but many of the lawmakers voting for it say it is a necessary compromise to keeping the nation safe. As far as that goes, well, I'll trust Obama's opinion of that.
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BuyingThyme Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:47 PM
Response to Original message
79. Yes it will. The law was written to do just that.
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:51 PM
Response to Reply #79
80. Why don't you provide some form of rebuttal or evidence. "Just because you say it is so
doesn't make it so" -- John Kerry.
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BuyingThyme Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 04:56 PM
Response to Reply #80
81. Bush asked for immunity and they're giving it to them.
Can't you just watch the news or something?

What's the deal with you guys? Do you think you can pretend reality away?
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 05:55 PM
Response to Reply #81
83. Epic. Fail. Try logic sometime. You might like it. Oh wait.
Never mind.
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BuyingThyme Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 06:13 PM
Response to Reply #83
84. Why don't you just explain why you're trying to convince people of a falsehood.
This has gone far beyond silly.
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 06:19 PM
Response to Reply #84
85. Shame on you. That is not what I am doing. I'm saying that there is hope for these 40+ pending
civil suits. That the law has an exception to spying that was done pre-9/11. If you read my post, you would understand that.
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BuyingThyme Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 06:31 PM
Response to Reply #85
86. Who told you that the pending suits have anything to do with pre-9/11 spying?
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 06:35 PM
Response to Reply #86
87. What says they don't. That's the whole point.
If the lawsuits cover *any* illegal, domestic spying before 9/11, then the lawsuits stand and can not be thrown out by this amendment. The telecoms don't get a free pass for that.
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rhett o rick Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 10:10 PM
Response to Reply #87
89. But they shouldn't get a "free pass" for illegal spying AFTER 9/11 either. nm
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berni_mccoy Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 10:51 PM
Response to Reply #89
93. I'm not saying they should. But the Bill isn't what people think it is and there is still hope for
the civil law suits against the telecoms.
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rhett o rick Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 10:10 PM
Response to Original message
90. Rule of thumb: IF BUSH LIKES IT, VOTE NO. nm
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democrattotheend Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Jul-06-08 11:59 PM
Response to Original message
96. Ashcroft resigned because of this?
That makes no sense...this program sounds right up his ally. Wasn't he the one who wanted to make the government Big Brother?
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clear eye Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jul-07-08 08:32 AM
Response to Reply #96
98. The truth is a little more complicated
Edited on Mon Jul-07-08 08:52 AM by clear eye
Ashcroft has a nasty record of bigotry. He's been seen (in his home state of Missouri) repeatedly opposing (and pulling every string at his disposal to eliminate) qualified candidates for office because they are African-American, and playing to racism in his own campaigns. He was on the Cheney train regarding the Patriot Act during the process of enacting it. He actually resigned for health reasons (he turned the AGship over to an acting AG before his hospitalization), but he did have an attack of conscience (or cowardice) regarding wholesale civilian spying and questioned whether it would come back and bite the Administration for Constitutional reasons. His close brush with death seems to have only strengthened his compunctions. I have to wonder if he would have cared about the niceties if he had seen the next Democratic majority Congress's determination not to follow up on anything that might lead to impeachment.
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clear eye Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jul-07-08 07:41 AM
Response to Original message
97. This Supreme Court will interpret it to throw out the suits
Edited on Mon Jul-07-08 07:57 AM by clear eye
All the lawyers who've commented on it agree. You seem pretty desperate to absolve Obama. It's perfectly legitimate to continue to support Obama (the over 8000 posters on the Obama site blog opposing the bill do), but the truth is that a "Yea" vote is a vote to eliminate citizen suits.
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