Discussion on FISA: What is wrong with Obama's stance? What is wrong with using phone companies?

[Levgreee]

My stance is currently ambiguous because I don't completely understand the issue. I do know the following:

1. Spying on people's phone conversations is currently allowed in the U.S. Authorities can get warrants to place phone taps.
2. I believe that whether authorities use phone companies, or the authorities themselves do the tapping, at the surface, is not an issue. It is the action which is considered immoral or not.
3. The innate immorality of cops/authorities spying is done away with because they go through our law system, which requires probable cause, warrants, etc.

What is at issue here? Does going through phone companies mean the authorities somehow get around probable cause or needing warrants?
Are there some other differences when going through phone companies instead of personally phone tapping suspects? Are people worried about phone companies going "vigilante" and abusing the power independent of authorities?

The only other objectionable thing I am aware of is the immunity, which I am completely opposed to. As is Obama.


What are people up in arms at Obama about? Please explain it clearly, and succinctly. Is this another case like the gas tax, where he is sticking to what is right even though it is not politically popular due to misunderstanding? He was a teacher of constitutional law and is strictly for upholding that law in other issues. How is he against it in this issue?

[msongs]

1. politicians across the board are prostitutes to big corporations - all of them nt

[Levgreee]

2. thanks for completely not attempting to answer the question nt

[HiFructosePronSyrup]

3. It's like this...

[madfloridian]

4. Maybe you never heard of AT&T's special room?

Probably not.

[undeterred]

5. They did it without getting warrants

They blatantly disregarded the law, and now after breaking the law, we've allowed them to become immune from prosecution. We don't even know the scope of the spying- so there is no way to know what was justified in the name of security and what was done for the sake of Republican politics. Knowing this administration- they broke the law for political reasons, just like Richard Nixon, but on a far grander scale.

[grantcart]

10. actually they did it without certifying it was a national security matter

[Levgreee]

11. Okay, you brought up immunity. Obama is against the immunity. As am I. So what to blame BO for?

[madfloridian]

Because it is too late now. He won't be able to strip it out next week.

He just paid lip service to it.

[ChimpersMcSmirkers]

39. What? So it's all a Senator from Illinois fault?

Seriously, do we really know what he tried to do behind the scenes? Plus, he hasn't even voted yet. If he votes for it, then, yah, that's not so hot.

[still_one]

15. The OP was asking for a serious answer and you explained it beautifully

my hats off to you for not being rude like some of the other posts

[AZBlue]

53. Obama's not supporting immunity.

[Eric J in MN]

6. The bill prevents states from doing anything about warrantless wiretapping.

They won't be able to enforce state privacy laws:
http://somd.com/news/headlines/2008/7840.shtml

Immunity Clauses from FISA Amendments Act, H.R. 6304

SEC. 803. PREEMPTION.

(a) IN GENERAL.—No State shall have authority to—

(1) conduct an investigation into an electronic communication service provider’s alleged assistance to an element of the intelligence community;

(2) require through regulation or any other means the disclosure of information about an electronic communication service provider’s alleged assistance to an element of the intelligence community;

(3) impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or

(4) commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.

(b) SUITS BY THE UNITED STATES.—The United States may bring suit to enforce the provisions of this section.

(c) JURISDICTION.—The district courts of the United States shall have jurisdiction over any civil action brought by the United States to enforce the provisions of this section.

(d) APPLICATION.—This section shall apply to any investigation, action, or proceeding that is pending on or commenced after the date of the enactment of the FISA Amendments Act of 2008.

===============


Regarding retroactive immunity, Obama wrote that he's against it, but not that he'll vote against the bill unless it's removed.

http://talkingpointsmemo.com/archives/201032.php

[madfloridian]

7. It takes away protections when wrongdoing is happening

To give the states no say is shameful.

[grantcart]

8. the question is actually very narrow - retroactive immunity

when the government asked for the information from the telecom companies those companies were not required to give it to them and could be sued for violating privacy provisions of the contracts that the users have with them.

However if the telecom companies requested that the White House certify that it was a national security matter (I don't know the actual technical legal statement) then the companies would have immunity and could not be sued.

A number of companies asked for the certificate and the White House did not offer any and these companies decided not to comply with the White House request. Other companies simply gave the information over and have no immunity although they could have had it under the existing law if they simply did not follow the wishes of the WH.

So why should private companies get immunity now when they didn't bother to follow the law at the time.

It irritates people that private companies have special standing under the law that even when they are provided special immunity provisions they don't bother to take advantage of it and treat the government like a subsidiary.

While we should not agree to grant this additional immunity I am not sure of why the Senate/House leadership decided to compromise. It may be that the decision was made that it would have given the Republicans too large a 'security' issue to use in the GE.

Part of the problem is that the leadership hasn't made any heroic stands during the last 8 years and so it seems to fit a pattern of compromising essential principles for no reason, however in my mind there is a huge difference between this and the IWR. In my opinion it is less a question of a dramatic loss of civil liberties than a special class of law for corporations that does not exist for anybody else, including you and me.

[DevonRex]

12. I think it is strategic also. One less thing in McCain's arsenal to

make Obama look soft on terrorism.

[The Magistrate]

9. The Taps Were Placed Without A Warrant, Sir

That is Un-Constitutional, and a criminal violation of the Federal Code, for both government agents and anyone acting at their behest. Criminal prosecution being unlikely since the criminals will not prosecute themselves, persons have started civil suit for damages against the companies. A provision currently in this bill directs that judges in these suits rule for the defendants if they present a letter from the administration saying the administration thought it was acting legally. This smacks of a bill of attainder, and an ex post facto law injuring the plaintiffs.

[Levgreee]

13. So does FISA explicitly state that the phone companies can act without warrants? If not, why has

the immunity issue even come into effect if they never violated what was allowed?


What section in FISA states that the phone companies are able to act without warrants? How does removing immunity fail to hold them responsible if they violate not getting warrants?


I am not defending the past actions. I am asking what is currently wrong with FISA. Citing specific clauses or passages from FISA could be helpful.



If immunity was totally done away with, would the phone companies still be able to spy without warrants and not be persecuted?

[DevonRex]

16. FISA good. Retroactive immunity for spying that did NOT use FISA

is bad.

[HiFructosePronSyrup]

20. So what's Obama's stance on the PSKT bill?

The one that subsidizes puppy ownership, but contains a rider which levies an outrageous new tax on kitties?

I need to know if Obama supports that or not, so I can tell whether or not I should be outraged on one hand, or pissed off on the other.

[cliffordu]

54. LOL

Nice one!

:rofl:

[still_one]

18. There is nothing wrong with the current FISA law the way it stands

It says they have to show justification

If a national emergency is involved, they can act immediately, and get the warrant I think up to 48 hours later

[Levgreee]

22. Yes, I have heard about the 48 rule. It invalidates Bush's past excuse that getting warrants slows

the process down and endangers our national security. There has never been any valid excuse to not get warrants.

[still_one]

49. We obviously agree /nt

[The Magistrate]

23. Not The Point, Sir

If the government is acting legally, they have a duty to co-operate. If the government is not acting legally, they have a duty not to co-operate. The government is responsible for obtaining warrants, that has nothing to do with the companies.

The provision of the bill deprives plaintiffs of their right for redress, and does so retroactively, affecting suits already filed, ordering hudges to decide those cases in a manner different than the law in place when the suit was filed.

[Levgreee]

26. So are you stating your issue is with the retroactive immunity?

Not with FISA at a whole?

So your issue is that Obama is not trying to do away with that retroactive immunity?

I believe it was a completely foolish law to pass, but it WAS passed. If the law is not forbidden in some way, not constitutionally invalid, as deemed by the supreme court in the cases where it is open to different interpretations, then the law passed SHOULD be upheld.

The retroactive immunity stands, the phone companies are not punished. We CANNOT do away with the law system, even if in this case it was abused and used immorally. This is a legal matter, not simply a matter of morality.

What can be done is making sure that such a foolish immunity clause is never allowed to be passed again, and to publically ostricate the higher authorities (president and company) who pushed this through, and try to bring them to justice however possible within the law (even if that requires punishing them for some other wrongdoing, and not telecom immunity,).

[The Magistrate]

29. My Leading Objection To The Bill Is This Provision, Sir

The thing is not yet law: the Bill has only passed the House, and its final form remains unknown. Sen. Obama has said he will strive to strip out this provision, and he had better be seen to pitch one Hell of a fight to do so.

Regarding the rest, the entire law seems un-necessary to me. The law at present gives the security services anything they need, and the country will come to no harm if no bill on this topic is passed. Pressing for this Bill is purely and simply an act of political manipulation by the administration, aimed at casting Democrats as 'weak', both in a 'soft on terror' sense, and in a 'see, they won't even fight for themselves' sense, in the hope of gaining some traction for Republican candidates this fall.

[LSparkle]

34. Exactly -- this is the same lame "I was only following orders" justification

that the Nuremberg Trials found UNACCEPTABLE.

And Qwest DIDN'T BACK DOWN -- if one company had the ethical
sense to refuse to go along, then why didn't the others?

[Levgreee]

35. This case seems different from the Nuremburg Trials... it is more technical and confusing

And the morality is less black and white.

I don't think you can claim, just because the "I was only following orders" argument didn't work for Nazis, it doesn't legally work in this case.

[LSparkle]

45. Still, Qwest REFUSED the request ... if others had also refused ...

perhaps we would have heard about this "terrorist surveillance
program" earlier, not years after the fact.

[DevonRex]

14. One question: If retroactive immunity is granted, can it also be

taken away down the line for the offenses committed before the bill is signed?

[Eric J in MN]

17. Theoretically, but it seems unlikely that Congress would...

...grant retroactive immunity and then pass another bill reversing that.

[DevonRex]

19. If this is a strategic move, then I think it would be very likely. Think

about it. Passing the bill makes Obama and democrats look strong on terrorism. If we have a majority in the house and senate and a dem president after the GE, then the bill taking AWAY retroactive immunity would not have to be veto-proof.

[johnnyburma]

21. Bill of Attainder?

You must be a magistrate here in New Mexico, where no law degree is required. Look up "bill of attainder," Justice Holmes.

[Levgreee]

24. Actually, I am a college student for another subject so i don't quite require a law degree.. jackass

sorry for my ignorance, I guess I will go lock and step with what YOU believe without asking why you believe it.

[The Magistrate]

27. Fun Is Where You Find It, Sir....

"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature." U.S. v. Brown, 381 U.S. 437, 440 (1965).

It is well within sound reason to view this provision of the Bill as 'trial by legislature', and as directing the injury of a readily identifiable group of persons without trial, namely plaintiffs who are by it prevented from realizing damages the companies might well be found to owe were the suits to proceed normally.

[grantcart]

30. I believe sir that the issue has nothing to do with taps

These are simply the question of receiving billing information that would establish a data base for patterns of calls made.

No warrants were required, however to hand over this information with immunity the telecom companies had to request that the White House certify that there was a well founded National Security Interest - which they did not, and some companies declined to agree with their request.

There was no question of a warrant because the investigation in this case was indeed a fishing episode with no one singled out, but rather trying to find people of interest based on them having called certain other numbers.

[Clovis Sangrail]

25. I'm sporadically follow this

and then stop because I get too angry.

The difference between what you know and what I understand is the following:

1) Yes, tapping is currently allowed if the authorities get warrants. The programs in question weren't getting warrants.
2) The telcos are required to give up information when presented with a warrant telling them to do so. The telcos gave out this information knowing full well that there were no warrants.
3) The innate immorality isn't a question with me, the law is.

I think the illegality of the actions is borne out by the fact that they are so concerned with immunity. If the telcos et al really believed they hadn't broken the law there wouldn't be a need for an act of congress granting immunity.
The argument of a 'flood of cases' doesn't work either.... the first couple cases would get heard and then the rest would be thrown out.

If there were warrants the telcos were legally covered in giving out that information... if there weren't warrants they weren't covered.
FISA also already contains provisions which allow the authorities to start spying prior to asking for a warrant.. and very very few warrants have been denied (I think less than 10 since the law originally came into effect).
I have a hard time seeing how the administration saying the existing FISA isn't good enough, given the courts track record, is anything less than a brazen power grab.

[Levgreee]

28. FOLLOWUP QUESTION:Some people seem to be stating the law granting retroactive immunity isagainst law

IF SO: WHY have lawyers, many of which are completely against Bush on the issue, not already quickly punished the telephone companies? What power/actions EXACTLY is Obama supposed to carry out, to undo this law? It seems this is what people want from him. Is this possible?

THIS IS MY UNDERSTANDING: THE WIRETAPPING IMMUNITY was NOT against the law. It abused and twisted the law, BUT within the law. It found loopholes that should not have been permitted, but cannot now be undone in a legal manner. Otherwise the hundreds of accomplished legal professionals who are morally against this would have already swiftly carried out prosecution.

If this is not the case, if illegal acts were done, not simply immoral acts, could someone please post a link explicitly stating how/why the immunity was ILLEGAL? I would guess the internet would be flooded with pages stating how the immunity was illegal (in a technical sense), if it was.

[The Magistrate]

31. Legislatures Knowingly Pass Un-Constitutional Laws All the Time, Sir

The mere fact Congress passes something says nothing about a law's Constitutionality. Congress passes laws because they are stampeded by calculations of popularity and political expediency, and courts routinely strike down laws passed in such heat: indeed, many legislators voting for them do so relying on court review to save them from themselves.

[Levgreee]

33. What is your point in bringing up that congress passed it? Why can't lawyers not associated with

congress still undo the law if it is unconstitutional? IF it is just a technical matter, people could bring up the issue to the Supreme Court, who would be OBLIGATED to undo any law that is in violation of constitutional law.

THIS MEANS that the issue of retroactive immunity IS NOT explicitly against the constitution. It is up to interpretation. It IS NOT explicitly unconstitutional otherwise it would have already been easily done away with.


So what should Obama do? Require that the issue is brought up in the Supreme Court so they can reinterpret the law as un-constitutional? Is that his responsibility? How else is he supposed to undo this law that was already passed a long time ago? Hasn't it already been brought to the Supreme Court already?

[The Magistrate]

41. Sen. Obama, Sir Should Use All His Clout To Strip This Out Of The Bill

He should make it clear to his fellow Democratic Senators that that is what he wants as the Party's Presidential nominee.

[Levgreee]

42. So it's a matter of political positioning, it's not a legal matter?most people seem to be stating BO

is making an incorrect legal decision in his position with this bill.

[The Magistrate]

43. Others Must Speak For Themselves, Sir

The immunity provision must go....

[Fredda Weinberg]

32. Because you asked ... the bill is actually the best we could hope for

Legally, the telcos relied on government assertions of legality. They will have to make this affirmation, in court, in order to be relieved of liability.

Have a great evening.

[madfloridian]

48. What the president says is legal, is legal.

So that argument is out the window.

[Fredda Weinberg]

51. Nonsense. I'm watching a reprise of senate hearings on C-Span

just now ... the GOP and Democrats agree on this principle. In unison, they condemn *'s questionably legitimate administration.

You come from Florida? No wonder you have no faith in the process ... I lived there and know the system is broken. But your statement wasn't true for Watergate, Iran Contra or even today.

You're welcome to your opinion, but not a different set of historical facts.

[Marie26]

36. There are no warrants; they can spy on everyone

And they ARE! That's what Echelon is all about. This isn't something as low-tech as a "wiretap". Echelon is a huge satelite system that eavesdrops on phone calls made around the world. The NSA is intercepting ALL telephone & internet communications (including this post), and feeding it into a massive database system. The telcom companies turned over all their records of phone calls - so the NSA knows the number of every phone call any resident has made. Then they use their filtering/profile programs to sort for terrorist activity... or even political activity. That's the (supposedly) banned Total Information Awareness program.

Warrantless wiretaps = Echelon + TSA

[WinkyDink]

37. Key phrase: "Authorities can get warrants...." That is all. Period.

[Levgreee]

40. The authorities work through the phone companies.... so what is your point?

So far posters have stated FISA does not allow phone companies to spy without warrants supplied by authorities, who are using them as a tool.

Do you have evidence that FISA allows something other than this?

[PassingFair]

50. FISA allows spying without warrants.

The government has to get warrants
within (I think) ten days AFTER the
taps to be in compliance with FISA
law.

This is why this is SO idiotic.

They CAN tap without a warrant if
the cause is urgent.

This is about totally uncontrolled
and unregulated SPYING on citizens
With NO ACCOUNTABILITY, not even
to SECRET COURTS.

I will not give money to ANY candidate
that votes on a bill that includes
immunity to these FASCISTS.

[PassingFair]

38. If he votes FOR it without the immunity being REMOVED...

I will NOT send him any more money.

It is THAT important to me.

These bastards need to be EXPOSED,
not COVERED UP.

[Levgreee]

44. How is he supposed to remove the immunity?How is it possible for him to undo this law already passed

Do you know for a fact that it is even within his, or Congress's, power? It seems all he can do is give influence, that there is currently no valid legal route known.

[PassingFair]

47. It hasn't been presented in the Senate yet....

It can be altered in the senate.

He can vote yes or no on the final bill.

If immunity is included in it, he should
vote NO.

[chimpymustgo]

52. He SAID he's voting YES - even with immunity - though he'll do his darndest to keep it out.

Snowball's chance in hell - and he knows it.

[Enrique]

46. this is a good discussion

Good questions, good information about the law.

I wonder why no one ever started a "discussion on FISA: what's wrong with Pelosi's stance?" thread

Seems everyone used to know all about it, now we are in learning mode. :shrug: