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US Senate Votes Immunity For Telecoms
Posted by
kdawson
on Tue Feb 12, 2008 03:31 PM
from the not-even-a-wrist-slap dept.
from the not-even-a-wrist-slap dept.
Ktistec Machine writes to let us know that the telecom companies are one step closer to getting off the hook for their illegal collusion with the US government. Today the US Senate passed, by a filibuster-proof majority of 67 to 31, a revised FISA bill that grants retroactive immunity to the telecommunications companies that helped the government illegally tap American network traffic. If passed by both houses and signed by the President, this would effectively put an end to the many lawsuits against these companies (about 40 have been filed). The House version of the bill does not presently contain an immunity provision. President Bush has said he will veto any such bill that reaches his desk without the grant of immunity. We've discussed the progress of the immunity provision repeatedly.
Related Stories
[+]
Telecom Immunity -- We're Down to the Wire(tap) 219 comments
The law says telecom providers can't wiretap your phone calls or net traffic, but as long as their taps are legal or they acted in good faith they're already immune from prosecution and lawsuits. That said, your telecom providers are still trying to get Congress to immunize them for cooperating with NSA wiretaps (presumably because the taps were both illegal and done in bad faith). Retroactive immunity wouldn't just mean they get away with it, it would crush our ability as citizens to find out what happened using the power of the courts.
Last month,
Sen. Chris Dodd temporarily stopped the bill, but within days -- probably on Monday -- it's going to be reintroduced, and it's not at all clear it will be stopped again. He'll need strong allies, because he's fighting not just the Bush administration and GOP Senators, but his own party's Sen. Harry Reid and
"AT&T's personal Senator" Jay Rockefeller. So Dodd needs more Senators backing him up, preferably joining a full-blown filibuster on the Senate floor. If you ever want accountability for whatever companies illegally forwarded your data to the NSA, you basically have today and tomorrow to
say
something.
[+]
Politics: Telco Immunity Goes To Full Debate 154 comments
Dr. Eggman notes an Ars Technica analysis of the firefight that is the current Congressional debate over granting retrospective immunity to telecoms that helped the NSA spy on citizens without warrants. A Republican cloture motion, which would have blocked any further attempts to remove the retroactive immunity provision, has failed. This controversial portion of the Senate intelligence committee surveillance bill may now be examined in full debate. At the same time, a second cloture motion — filed by Congressional Democrats in an effort to force immediate vote on a 30 day extension to the Protect America Act — also failed to pass. The Protect America Act has been criticized for broadly expanding federal surveillance powers while diminishing judicial oversight. While the failure of this second cloture motion means the Protect America Act might expire, a vote tomorrow on a similar motion in the House will likely bring the issue back into the Senate in time. It seems, according to the article, that both parties feel that imminent expiration of the Protect America Act is a disaster for intelligence gathering, and each side blames the other as progress grinds to a halt."
[+]
House Declines To Vote On Telecom Immunity 341 comments
freedom_india alerts us to news that the House of Representatives declined to bring the surveillance reform bill to vote, prompting House Republicans to walk out in the middle of a session. The bill, recently passed by the Senate, includes retroactive immunity for the telecommunications companies who assisted with illegal domestic wiretaps. The walk-out comes after a proposal was shot down on Wednesday that would have extended the current legislation for another three weeks.
[+]
White House Says Phone Wiretaps Will Resume For Now 262 comments
austinhook brings us news that the U.S. government has resumed wiretapping with the help of telecommunications companies. The companies are said to have "understandable misgivings" over the unresolved issue of retroactive immunity for their participation in past wiretapping. Spy agencies have claimed that the expiration of the old legislation has caused them to miss important information. The bill that would grant the immunity passed in the Senate, but not in the House.
[+]
Politics: House Republicans Renew Push for Telecom Immunity 123 comments
CNet is running an update to the controversy over giving telecommunications giants such as AT&T immunity from lawsuits involving the assistance they gave the NSA for illegal wiretaps. Republican leaders are circulating a petition which would force a vote on the bill passed by the Senate but not by the House. Democrats are holding out for a version of the FISA bill which opens the telecoms to prosecution. President Bush still intends to veto any such document.
"At a wide-ranging House hearing on Wednesday, FBI Director Robert Mueller again urged passage of a bill that includes immunity for phone companies, arguing that 'uncertainty' among the carriers 'affects our ability to get info as fast and as quickly as we would want.' He admitted, however, that he was not aware of any wiretap requests being denied because of Congress' inaction."
[+]
Politics: McCain Supports Warrantless Domestic Surveillance 650 comments
I Don't Believe in Imaginary Property writes "While there have been shifting reports about McCain's view on warrantless wiretapping, nothing could be clearer than the latest comment by McCain adviser Doug Holtz-Eakin, who said, 'We do not know what lies ahead in our nation's fight against radical Islamic extremists, but John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution.' Article II, of course, is what Bush has argued gives the President virtually unlimited power during war, and McCain has already voted in favor of Telecom Immunity, though he sometimes mentions, to those asking for accountability, wanting to hold hearings about what the telecoms did."
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Stunned (Score:5, Insightful)
Re:Stunned (Score:5, Insightful)
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Re:Stunned (Score:4, Funny)
That'll stop the downmodding, for certain.
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Re:Stunned (Score:4, Funny)
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Re:Stunned (Score:5, Interesting)
http://www.whitehouse.gov/news/releases/2007/05/20070509-12.html [whitehouse.gov]
I've already asked about this and this was the response from Obama (the "official one" from when I emailed him using the whitehouse mail thing). Copied verbatim, and just noticed the spelling error too. Ironic.
Additioanlly, I would like to address your concerns about the National Security Presidential Directive 51 and the Homeland Security Presidential Directive 20, signed by President Bush in May, 2007.
As you know, these directives establish procedures for continuity of the federal government in the event of a catastrophic emergency. "Continuity of government" is an effort to ensure the federal government can continue to perform essential functions during a time of emergency. Additionally, "catastrophic emergency" is defined as "any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions."
I agree that Congress has an important obligation to monitor how the executive branch exercises its authority. The system of checks and balances enshrined in our Constitution is central to our democracy and protects us from a concentration of power in any one branch of government. I will continue to follow this issue closely with my colleagues on the Senate Committee on Homeland Security and Government Affairs in an effort to ensure accountability and lawfulness, and I look forward to staying in touch during this process.
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Re:Stunned (Score:5, Informative)
It's not over yet. It goes back to the House and into conferencing. The House is adamantly against telecom immunity; last week, the House leadership sent a letter to the Senate condemning it. I believe there's a strong chance that telecom immunity won't be able to make it out of the House, but it might be a good thing to call your Representatives (and Senators, since they're on the conferencing committee too.)
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Re:Who's on the conferencing committee? (Score:5, Informative)
At this point, the Senate has kicked the bill back to the House. The House will need to vote on this version, or a new version, to kick back to the Senate. If the House passes, without change, the version the Senate passed (not likely), then it goes to GWB for signature/veto/pocket veto.
More likely is the House makes a few changes and kicks the bill back to the Senate.
In short, there is no final bill until the House & Senate compromise and each pass an identical bill; it's likely that neither of the current versions will be the final bill, since each house refused to pass the others' version.
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Re:Stunned (Score:5, Insightful)
Simply withholding immunity really just moves the problem around a bit. Now the shareholders of (for example) AT&T bear the cost of decisions they didn't make, approve, or know about. Perhaps they could turn around and file a shareholder suit (on the grounds that AT&T worked against shareholder interests by cooperating with and being held liable for the wiretap program), though I'm told those types of suits aren't very common these days.
While we do hold that "just following orders" isn't a suitable defense for war crimes, I wonder if the balance between the moral/ethical breach of compliance vs. pressure applied by the government is the same in this case. (Do we actually know how much pressure or threat, if any, was used to get the telecoms to cooperate?) I'd see some merit to the argument that liability should be pushed back onto the government itself.
At any rate, I find it surprising that we would expect more backbone out of corporations dealing with the American government than we expect out of them when dealing with, say, the Chinese government. If we tolerate Google "playing by China's rules" when all they stand to lose is their entry into the Chinese market, then why would we expect better of AT&T when they would be running afoul of their home country's government?
What I'd like to see -- and you'll have to forgive me for any imprecision in the details here, as IANAL -- is a John Doe suit filed against the individual(s) within (for example) AT&T who actually made and authorized the decisions to compromise customers' privacy. Naturally those individuals would try to hide behind the shield of corporate liability; I would hope (though I can't remember if it's the case) that taking actions outside of -- and even contrary to -- the corporation's interests would make a case for PCV.
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Re:Stunned (Score:5, Insightful)
At a time where corporate law suits against single citizen's is at an all time high, you suggest that we (the people) should have no recorse against illegal activities of corporations? Just becuase 'someone else' asked them to do it.
Absolutely not sir.
Both the government that asked them to commit something illegal and the people that actually commited the illegal act (this is proven they knew it to be illegal, as some companies REFUSED on the grounds of it being illegal).
Its called a conspiracy sir.
All parties are at fault.
(sorry about spelling at work using IE yuck).
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Re:Stunned (Score:5, Insightful)
Instead, one of the foundations of our nation is eroded, that is the citizen's protection from search without warrents, and a major crime will go unpunished. This tells the citizens that we are at the mercy of the executive branch, who has time and time again showed that they are above the law.
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Re:Stunned (Score:5, Insightful)
1. Corporate leaders are all about the bottom line. I have no beef with this whatsoever, as it tends to create more efficient organizations that end up benefitting the consumer. Of course there are exceptions to that, monopolies, perversions of the system, but let us for the moment assume that the telcos are operating a normal entities in the capitalist system.
2. Corporate leaders are going to take whatever stand they believe will benefit their shareholders. Shareholders are routinely rewarded and\or punished for the decisions of corporate leaders which they have virtually no influence on. This decision is no different.
3. Holding telcos legally responsible for breaking laws, especially in circumstances where not breaking the law was an acceptable response (as evidenced by the fact that some telcos did do just that) will encourage all telcos to respect wiretap laws in the future.
4. Conversely, not holding telcos responsible for breaking laws will encourage more of them to break laws in the future, since it has been proven there is little or no risk, and a goodly amount of incentives for playing ball with the government.
5. The logical conclusion of allowing telcos to get away with breaking the law, as long as the government is the entity asking them to break it, is that eventually all telcos will either participate willingly in illegal wiretapping, or be unable to compete with their less scrupulous competitors, and be driven out of business.
Therefore:
We should corporations responsible for breaking laws, or be prepared to accept an America where illegal wiretapping is widespread, and goes unpunished. Even if you buy the "it's necessary to fight terrorism" bullshit they're feeding you right now, this is the sort of power that's never going to go away once it's institutionalised.
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Re:Stunned (Score:5, Insightful)
While we do hold that "just following orders" isn't a suitable defense for war crimes
AG Mukassey does not agree with that. Last night's interview on Lehrer News Hour had him state that no one can be investigated or charged for waterboarding because previous AG Gonzales said it was legal and that absolves anyone who followed that advice of any crime.
I don't agree with that, but that is the stance of the country's highest law enforcement official.
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The true purpose of the lawsuits (Score:5, Insightful)
Yes and these lawsuits are in fact the point of the spear aimed at the root of the problem.
Punishing the telcos and getting damages isn't the important part. It's something that should be done, but it is really just a means to an end. The ultimate point is to find out through discovery what exactly the government did. The aim is to get evidence out into the open, in the public record, of the government's malfeasance.
Once the spear point has pierced the government's veil of secrecy, then we can drive it deeper into the government itself. With the information revealed in the suits, it may be possible to sue the government, get court rulings about the legality of the administration's practices, and ultimately set up the possibility of future prosecution. If it can create enough of a scandal to cost politicians and bureaucrats their careers, while not optimal, that can still serve as a check to keep the government in line for a while.
This is also, ultimately, what the immunity provisions are about. It's nothing to do with protecting telcos from having to pay damages, that's just the means to an end. It's all about preventing anyone from discovering what the government really did -- they even admit it when talking about why the provision is necessary, though of course they couch it in "national security secrets" terms. Bush and team are trying to cover their own ass, and cowardly Congress is going along with it.
By the way, you raise a good point about Google and China. Personally I don't forgive Google, but at the same time I recognize the realities of working with a government like China's, one such reality being that censoring the people is not illegal. At the same time our government is not China's, our government is supposed to respect human rights, and more importantly it is illegal for them not to just as it is illegal for AT&T. And also because our government is not China's, we the people should be able to discover when our government or corporations break the law and demand redress. Which, coming full circle, is exactly what these lawsuits are about.
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Re:The true purpose of the lawsuits (Score:4, Insightful)
No it isn't an abuse. The lawsuits are just, because the telcos broke the law, and they should be punished for that.
I thought your complaint was that this wasn't addressing the true problem of the government breaking the law. I'm explaining how the lawsuits also address that. And just so you know, it is extremely common and not considered an abuse at all for an otherwise just and proper suit to have other strategic purposes, whether that be establishing a precedent, creating situations ripe for appeal and perhaps judicial review, to yes in fact exposing other crimes which leads to other lawsuits.
The problem with suing the government is that until we actually know for certain what they did any lawsuit isn't even going to get off the ground, its doubtful anyone would even have standing to do so until we know more. If you really think the government should be sued, the telco lawsuits are the best first step in doing so.
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Last Chance to Stop Amesty (Score:5, Informative)
So sign the petition [firedoglake.com] to pressure the House to stand up for keeping amnesty out of the final bill. It's the last chance you have to keep some privacy rights when on the phone (hi, Dick!).
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Don't I feel suckered (Score:5, Insightful)
Presidential Candidates Votes (Score:5, Informative)
McCain: No
Obama: Yes
Clinton: Did not vote
http://projects.washingtonpost.com/congress/110/senate/2/votes/15/ [washingtonpost.com]
Re:Presidential Candidates Votes (Score:5, Interesting)
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Re:Presidential Candidates Votes (Score:5, Informative)
precisely what they intended to do.
It was worded to STRIKE the immunity provision. A Yea vote was one where they were to hold the telcos accountable for
civil violations of the law with regards to FISA. A No vote was to give the telcos a get out of jail free card.
McCain voted to give them a free out.
Clinton didn't bother to vote.
Obama voted to keep them accountable for their illicit activities. (Which, unfortunately, would be an accurate appraisal of the telcos' position right now...)
I suspect Obama, even if he wanted to give them a way out, just bought himself quite a bit of street cred with
a LOT of people if there's something of a big deal made about this.
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Re:Presidential Candidates Votes (Score:4, Informative)
It is illegal for the telcos to tap phone lines, and the only exception is when the government shows them a warrant or has probable cause. Essentially, if the government did not have a legal warrant, or probable cause with which to attain a warrant after the fact, then the telcos tapping was also illegal.
TFA even specifies this, not that I would point fingers at anyone for not reading it.
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Re:Presidential Candidates Votes (Score:5, Insightful)
Hillary has been going on and on about the number of times Obama did not vote when he was in the Illinois Senate. Hopefully he'll use this as ammunition.
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Taxation without representation (Score:4, Insightful)
I'm serious. I know all of you are paying taxes, and shit like this sure as hell means the common guys isn't represented. Time for a few tea parties, methinks.
Glimmer of hope (Score:5, Insightful)
But, my pockets aren't as deep as brother bells... So, I'm not betting on it
According to the article (Score:5, Insightful)
Yes it would do that. On the flip side, it would encourage them to obey the law. Personally I think that cooperating with the government when the government is breaking the law is something that should, in general, be discouraged*
*Note: For cultures who miss the point, this is called "understatment"
info request (Score:5, Insightful)
What's next? Retro-actively making something illegal and then putting you in jail for it?
Re:info request (Score:4, Informative)
What's next? Retro-actively making something illegal and then putting you in jail for it?
Again, the Constitution expressely forbids this.. for now.
More and more I think I may vote for Ron Paul, even if he's inconsistent.
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Re:info request (Score:4, Informative)
But there isn't a restrictions against reducing or eliminating liability for criminal activity after the fact. For instance, if a criminal defendant was convicted of first degree murder and sentenced to death, and the Congress subsequently outlaws capital punishment, the death sentence is reduced in accordance with the new law. If they change their mind and reinstate the death penalty, the hypothetical criminal defendant is not eligible for an increase in his sentence. In particular, it is well established that Congress can pass laws in gray areas to clearly specify that something isn't criminal, even after convictions based on the old law, or to eliminate even very broad classes of liability after the commission of the offending action.
In this case, there is a claim of criminal activity that the Justice Department refuses to prosecute because it does not believe it was illegal. The plaintiffs have chosen to pursue civil cases on a theory of civil liability for those actions, based on Federal law. Congress may choose clarify (or eliminate, depending on your point of view) the law to state that the given behavior was not a crime. In this case, it clearly does not run afoul of Congressional power to do so. If that happens, there is no longer even a colorable argument that the plaintiffs have been been harmed, so the cases will be dismissed.
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Is there Immunity for Congressmen??? (Score:5, Insightful)
Is there anything to prevent lawsuits against the government officials who authorized illegal wiretapping in the first place? It doesn't even make sense to hold the telecoms responsible for following orders from Uncle Sam. What does make sense is to hold Uncle Sam accountable for his actions to order the illegal taps (instead of following judicial procedure and getting authority/permission).
Bush even talked about this in the State of the Union last month. He said, "We have to extend the Bill that let's us track terrorists on February 1." As far as I know, that day came and went. But let's get a list of Congressmen who voted for the original illegal wiretapping bill that caused this whole mess. Target those "ENEMIES OF FREEDOM", and make sure people know who they are to prevent them from keeping their seats in Congress during the next election.
(you know, I never understood why Congress doesn't have terms limits. Poor Ted Kennedy has been there so long that he slept through most of the last State of the Union address).
U.S. Constitution, Article 1, Section 9 (Score:5, Informative)
It doesn't get much clearer than that!
(For those of you who do not know legalese, "ex post facto" means "retroactive".
Re:U.S. Constitution, Article 1, Section 9 (Score:4, Interesting)
Right. Meaning that the this little retroactive immunity provision is a stupid political statement. The people with open suits now can simply appeal the dismissals (if they even occur at all) on these grounds and the cases will again proceed. Whether or not the cases are eventually ruled for or against the telecoms is another matter. My understanding of things is that the telecoms are claiming that they only actually spied on communications with at least one foreign endpoint even though the equipment necessarily has the ability to spy on any communications.
Remember that this is the Foreign Intelligence/Surveillance Act. If they did use it to spy on purely domestic communications without a warrant then they are probably guilty because they stepped outside the bounds of the law. Most of the cases though seem to be brought by people who were indeed having an international conversation so I think it may be difficult to win these cases against the telecoms.
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Re: U.S. Constitution, Article 1, Section 9 (Score:5, Insightful)
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Incorrect (Score:5, Insightful)
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What I'd like to see (Score:4, Interesting)
Punish them 2x that amount for seeking immunity and generally trying to excuse it. Don't just fine the company (but by all means, do that too). Seize the personal assets of every executive who supported this and put them up for auction; disperse the proceeds to a variety of charities.
Impeach and imprison for life, on the basis of treason, every politician who supported what they knew to be an unconstitutional law. Isn't it funny how someone who assists our enemies is prosecuted for treason, but the far worse threat of elected officials who knowingly erode civil liberties is generally not even recognized to be a crime? Remember that politicians are generally also lawyers; they know very well what the 4th Amendment says.
I'd like to see all of the above happen in a court of law. Yes, I can keep dreaming. None of this will ever happen. I know that. But I'd like my country back, please.
Maybe when we're all marching the goose step we will have some insight and will collectively decide "hmm, maybe a free country IS worth a miniscule risk of dying in a terrorist attack." The politicians of course are happy to increase their power for any reason or no reason at all, but it is DISGUSTING how the public is so cowardly that they always allow this to happen whenever a little more safety is promised to them. This is such a disgrace to anyone familiar with how and why the USA became a nation.
This is not the will of the people (Score:5, Informative)
Amendment IV of our Constitution:
Here's Senator Dodd's thoughts about telecom immunity
Only 26 Senators voted against this (Score:4, Insightful)
Senator Clinton was
Well, guess that answers who's tech-friendly.
I hope I speak for most Ron Paul supporters (Score:5, Insightful)
It amazes me all of his detractors that call him an extremist who is blindly supporting some outdated, irrelevant document -- people who then complain about this stuff being passed. Don't you realize that this is the kind of thing Ron Paul would stop?
Re:Who voted for it? (Score:4, Informative)
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Re:Who voted for it? (Score:5, Informative)
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Re:Who voted for it? (Score:5, Insightful)
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Re:protest? chance of stopping this? (Score:5, Insightful)
Pffft, the Senate failed us and you think the House won't? The House has become a rubber stamp for whatever the party leadership wants in the last few years -- under both the Democrats and the Republicans. So no, unless Nancy Pelosi herself is personally opposed to this I would assume that it will pass easily.
Fucking Republicans impeached Clinton even though they knew full well they couldn't convict him -- and yet the Democrats don't even have the backbone to stand up to a veto threat by the White House before they knuckle over. Isn't there some middle ground between being the White House bitch and impeachment?
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Re:protest? chance of stopping this? (Score:5, Insightful)
Last year, there was one big-ass march [unitedforpeace.org] in D.C. protesting the war.
What media deigned to even report on it put the attendance at 10% of the true number.
March all you like...it doesn't matter. We lost this country when we lost the independence of the media.
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Re:protest? chance of stopping this? (Score:5, Funny)
That's why I like old school solutions. Marching with pitchforks and torches. Looting and pillaging every Starbucks on the way. Ah, I miss the old country.
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Re:protest? chance of stopping this? (Score:5, Insightful)
The tyranny of the majority, despite its popularity, is still a tyranny.
It precisely is about creating the potential for a billion private utopias. Whether an individual ever gets his utopia is up to him... but it's a major misunderstanding of the principles of the US Founding Fathers to believe that majority rule was intended. Much of what is present in the US Constitution is precisely to prevent majority rule.
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Pardon me? (Score:5, Interesting)
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Re:Pardon me? (Score:5, Insightful)
Unless I'm completely mistaken, the President has zero authority to issue a "pardon" for a civil action. The teleco's aren't being charged with criminal violations of the law (that would require the Government to actually enforce the laws...), they are being sued by individuals and groups seeking discovery to find out what actually happened and possible monetary reparations.
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Re:The Republicans lied; the filibusters had a dea (Score:4, Informative)
She didn't. Couldn't be bothered apparently. Interestingly enough both McCain and Obama found the time to vote. Here's the vote itself [senate.gov] if you are wondering how your Senators voted on it.
At least my other Senator (Schemer) had the balls to vote against it. For all the good it did.
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Clinton abstained (Score:4, Informative)
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Re:just great (Score:5, Informative)
As linked in another post. Obama voted to strike the immunity clause from the bill.
NO Republicans voted against. Lindsey Graham, one of my state's (SC) senators, was the only Republican not to vote at all. I'm hoping that this was because he was against it but couldn't go against the party so much as to vote against it, but we'll see.
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Re:And the beat goes on. (Score:5, Insightful)
You really shouldn't make "police state" claims like that. If you think this is a police state, you obviously have no idea what a true police state is. Displaying such an obscene level of ignorance is probably not in your best interest.
I've seen police states. I've had to pass through checkpoints and answer questions about where I was going, why I was going there and when I plan on being back. The US is not a police state.
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Re:And the beat goes on. (Score:5, Insightful)
Really, are you that much of a pedant that you'll keep arguing over minutiae up until the last possible moment? You're not helping anyone but yourself.
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