House Declines To Vote On Telecom Immunity

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.

Bush's comments on the issue

[morgan_greywolf]

"The House should not leave Washington without passing the Senate bill," Bush said, adding that not doing so would "put the American people at risk."

*sigh* I'm soooo tired of these scare tactics and I'm sure the rest of America is, too. Look, we're no better off than we were before 9/11 with regards to 'safety' from terrorists, and in many ways, we're worse off.

Read my lips, Bush: We ain't skeered of no terrorists.

Re:Matters Instead

[AKAImBatman]

Trying to charge the White House aides is an interesting tactic, as it was Bush himself who invoked executive powers to keep them from testifying. Yet they know they can't charge the President himself (short of impeachment, they can't touch him) so the House chose to chase down the aides instead.

Re:One can hope

[Shining Celebi]

But of course, President sockpuppet prefers not to mention that....

The President himself doesn't feel the need to mention that. He was admonishing Congress yesterday, claiming that: [whitehouse.gov]

Members of Congress knew all along that this deadline was approaching. They said it themselves. They've had more than six months to discuss and deliberate. And now they must act, and pass legislation that will ensure our intelligence professionals have the tools they need to keep us safe.

Earlier this week the Senate did act, and passed a strong bill, and did so with a bipartisan majority. The Senate bill will ensure that we can effectively monitor those seeking to harm our people. The Senate bill will provide fair and just liability protection for companies that assisted in the efforts to protect America after the attacks of September the 11th. Without this protection, without this liability shield, we may not be able to secure the private sector's cooperation with our intelligence efforts. And that, of course, would put the American people at risk.

Our government has no greater responsibility than getting this work done, and there really is no excuse for letting this critical legislation expire. I urge congressional leaders to let the will of the House and the American people prevail, and vote on the Senate bill before adjourning for their recess. , and could reopen dangerous gaps in our intelligence. Failure to act would also make the private sector less willing to help us protect the country, and this is unacceptable. The House should not leave Washington without passing the Senate bill.

Of course, as you said, all previously authorized wiretaps under the expiring act go on, and as the House Intelligence Chair put it:

First, NSA can use its authority under Executive Order 12333 to conduct surveillance abroad of any known or suspected terrorist. There is no requirement for a warrant. There is no requirement for probable cause. Most of NSA's collection occurs under this authority.

Second, NSA can use its authority under the Protect America Act, enacted last August, to conduct surveillance here in the U.S of any foreign target. This authority does not "expire" on Saturday, as you have stated. Under the PAA, orders authorizing surveillance may last for one year - until at least August 2008. These orders may cover every terrorist group without limitation. If a new member of the group is identified, or if a new phone number or email address is identified, the NSA may add it to the existing orders, and surveillance can begin immediately. We will not "go dark."

Third, in the remote possibility that a new terrorist organization emerges that we have never previously identified, the NSA could use existing authority under the Foreign Intelligence Surveillance Act (FISA) to monitor those communications. Since its establishment nearly 30 years ago, the FISA Court has approved nearly every application for a warrant from the Department of Justice. In an emergency, NSA or the Federal Bureau of Investigation (FBI) may begin surveillance immediately, and a FISA Court order does not have to be obtained for three days. The former head of FISA operations for the Department of Justice has testified publicly that emergency authorization may be granted in a matter of minutes.

In summary: There really doesn't seem to be a need for this law at all, let alone the provisions like telecom immunity.

Re:Wow

[TripMaster Monkey]

Yes, the House can enforce the contempt citation without the aid of the Justice Department. Under the rules for inherent contempt, after the citation is passed, the cited party would be arrested by the Sergeant-at-Arms for the House and brought to the floor to answer charges. However, the statutory procedure, which is the one that involves the Justice Department, has been used more often since its inception in 1857, and the inherent procedure hasn't been used since 1934.

Why do we /.'ers prefer liberty to safety?

[DoofusOfDeath]

Most vocal Slashdot'ers, including myself, feel that in the balance between (effective counter-terrorism) and (personal freedom, open government), Bush and Congress err far too much in the (effective counter-terrorism) direction.

Are most private citizens like us in this regard, and it's an authoritarian-vs.-population issue? Or are we /.'ers different from most citizens, and if so, why?

Re:Correction....

[abaddononion]

I know this is an old thing, but it apparently still hasnt gone away, so...

Lying under oath isnt illegal. Perjury is.

As to the difference, Ill borrow from Wikipedia:
Perjury is the act of lying or making verifiably false statements on a material matter under oath or affirmation in a court of law or in any of various sworn statements in writing.

Ill leave it at that, since getting into the full history would take way too long. That said, I dont *support* what Slick Willy did, but his impeachment was nothing more than a media frenzy.

Re:Correction....

[gmack]

Actually.. technically he was never proven to have lied. He just had the judge define sex as "the penis goes into the vagina" and then said he didn't do that.

The fact that they never asked him if he got a blowjob is the prosecutor's own incompetence. Asking to define "sex" should have been a dead giveaway that something near sex but not quite sex actually happened.

Kenneth Starr got outsmarted by Bill Clinton. End of story.

Re:One can hope

[WGFCrafty]

Correction, Mukasey "would feel" that it is torture... if it's done to him. http://youtube.com/watch?v=3A1luTdLaSs [youtube.com]

Re:Wow

[RingDev]

Now Batman, I'm usually well aligned with your views. And even in this I can see your point, but I think it is a bit naive to claim that the reason for the walk out was not related to the tel-com vote. Pitching a fit over the contempt charges was just a scape goat.

By walking out at that point they achieve 3 political goals:
1) They prevent the contempt issue from being settled.
2) They spare themselves the popular heat of voting for immunity.
3) They continue the perception that the democratically lead congress is unable to take action.

Many congressmen are behind impeachment, but unfortunately the majority leader has taken it off the table and quashes any movements for it. So they are taking what actions they can. It is the responsibility of the legislative branch to maintain the balance of power with the Executive and Judicial branch. If the option of impeachment is not available, they must use what ever powers they do have to attempt to do so. If that means censures and contempt charges, so be it.

Sure, it may be grandstanding, but it is grandstanding that the people, the congressmen's constituents are demanding. If the representatives are getting pressure from their State, from the people that they are there to represent, to pursue contempt charges, then their actions seem to be right on the mark.

And besides, I didn't hear any complaints from the Republican party (at least not on this scale) when the congress was wasting days on steroids in baseball hearings. Talk about a waste of tax payer resources. Who gives a flying f' if some sports star was juicing. Let the league handle it, and if there was a criminal act, let the judicial branch handle it. There is no reason for us to be paying these over-aged pasty white guys to sit around talking about baseball.

-Rick

Kennedy

[kisak]

Ted Kennedy on FISA:

Think about what we've been hearing from the White House in this debate. The President has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retroactive immunity. No immunity, no new FISA bill. So if we take the President at his word, he is willing to let Americans die to protect the phone companies. The President's insistence on immunity as a precondition for any FISA reform is yet another example of his disrespect for honest dialogue and for the rule of law.

It's painfully clear what the President's request for retroactive immunity is really about. It's a self-serving attempt to avoid legal and political accountability and keep the American public in the dark about this whole shameful episode. Like the CIA's destruction of videotapes showing potentially criminal conduct, it's a desperate attempt to erase the past.

Kennedy on YouTube [youtube.com].

Re:One can hope

[dgatwood]

It's not that they're on a leash. The problem is that we've really lost touch with our journalistic roots. With the death of print media, TV has utterly failed to take its place, effectively substituting infotainment where we once had news. And, of course, this was predictable. I made a comment to this effect in front of a gathering of educators, network producers, etc. almost a decade ago, pointing out that the fundamental problem is that local TV pays dirt, and as long as this is true, most of the best and brightest will take jobs in other professions.

So basically folks are only willing to work local news if they are either A. really dedicated to journalism or B. an "I wanna be on camera" talking head with a pretty face. In newspapers, you can't get away with being a talking head, as the written word has to stand on its own... but guess which one of these two is more common on the TV side of the house? Now, realizing that these people in local news are the people who eventually bubble up and cover national and international news, the problem suddenly becomes abundantly clear.

So I'll say it again, since apparently nobody listened the first time. As long as local media continues to pay people barely above minimum wage for jobs in broadcast TV, the quality of the applicant pool will continue to decline, and thus the quality of journalism will continue to degrade until it becomes nothing more than a circus. Some would say this has already happened.

Since I don't expect local TV to treat employees well enough to turn this mess around any time soon, the best alternative is to simply ignore mass media and get on with our lives. Better yet, start more web sites like Slashdot that aggregate news coverage and discuss it. You're far more likely to get both accurate reporting and intelligent questions from a bunch of rank amateurs with intelligence than from most of the people dragging around a microphone and a $30,000 studio camera. I know it's sad, but that's the world we live in, so we might as well accept it and start trying to find workarounds.

Re:Bush's comments on the issue

[morgan_greywolf]

You can thank Bush that you don't have to be skeered of no terrorists.

Pffft. My not being scared of terrorists has nothing to do with Bush. In case you hadn't noticed, acts of terrorism were already plenty illegal before Bush even got into the White House, let alone 9/11. Well before all of this, we've had law enforcement and military, working at the federal, state and local levels doing their job to stop terrorists and other illegal, hostile acts of aggression. They already knew something like 9/11 could happen before it ever happened. Nobody was surprised. Trust me.

Here's the thing, man: The terrorists aren't all that organized. They couldn't possibly pull off another 9/11. Besides, do you think terrorists actually did 9/11 in the first place? If so, do you think they did it by themselves, without any help? See my first statement in this paragraph. There is no "the terrorists". There are different varying factions who are extremely busy fighting amongst themselves and everyone else, never mind the United States. Sure, occasionally an IED blows up in Iraq, or there are suicide bombers, but these aren't the coordinated act of some mighty coordinated group all orchestrated by one man named Osama Bin Laden. If you really think that, then you probably deserve what the government is doing to you. But please, don't let your ignorance affect my freedom.

The Democrats are so far out of reality to push their scare tactics of Global Warming being worse than Islamofascism.

Whoo boy. Do they have you brainwashed or what? Wake up, man! The Democrats and the Republicans use the same scare tactics to get whatever it is they want. Do I believe Global Warming is bad? Yes. Do I think the models that predict all the bad stuff that Al Gore and others told us would happen are right? Who knows? They don't know for sure. But here's the thing, man: Do you want this planet to be a good place to human race to live, now and in the future? Then raping the planet of natural resources and polluting the fsck out of it because we're too worried about a few billionaires not being able to buy a new yacht next year because their stock portfolio fell a few percentage points seems like a bad idea, now doesn't it?

Re:Legal fees?

[GodInHell]

You raise alot of issues that were on my last Civil Rights Law exam :).

The short answer is none of these questions have a clear answer. There are few solid lines in the law when it comes to suing government actors or those who are cooperating with government actors. I'll try to hammer through these with some thoughts on each - please don't read them as statements of a final position, just my thoughts in response to your questions.

(IA still NAL) Actually - I have wondered about this retroactive immunity from the perspective of the 1st amendment "Redress of Grievances" clause.

I am also not a lawyer, just a law student yet.

Congress shall make no law . . . and to petition the Government for a redress of grievances.

noted...

Typically, although Congress has retroactively immunized companies from lawsuits in the past, it has done so while creating an alternative route - i.e., creating a fund to compensate the families of those killed from the WTC while protecting the airlines, and I believe they did something similar to asbestos victims (or maybe that's been considered - not sure).

The first distinction I would make is that those are the results of unauthorized tortious acts by companies against private individuals. Government interaction with the companies granted immunity (grantees) was light, providing on the ground security, etc.

The U.S. Government does not fear granting total immunity under certain conditions - For instance sovereign immunity is regularly declared by the U.S. Navy and the United States against asbestos cases from naval facilities - they made a clear eyed choice to risk the health of sailors over time in order to save their lives at war (fire on ships is bad, asbestos helps stop and control fires) and there is no recourse at law to recover damages from the Navy for that harm. Likewise judges are immune from any tortious recovery stemming from their role as judges, even when they're clearly biased, wrong, and abusing their authority for any purpose, no matter how immoral. As far as the private manufacturers of asbestos go - as far as I know the FAIR act never got passed - so that program of setting up a trust to pay out benefits was never put in place. Similar programs are often set up at the resolution of class action suits - which may be what you're thinking of? I've never studied the history of asbestos cases closely, so it's possible there is a wide gulf I don't know about.

Back to my point though - what is sought here is to classify the cooperative act as a type of gov't action (at least that's what it looks like to me). In the same way that you cannot recover for harm caused to you by a police officer who was acting within a reasonable belief that the act was constitutional (a limited form of immunity for state actors) these telecoms were functioning as quasi-state actors (similar to privately controlled prison complexes). Quasi-governmental actors are usually subject to liability under the theory that they are motivated by a profit motive, whereas government actors are credited with a justice motive - a desire to act within the law (and to avoid termination).

I believe the idea is that since the gov't cannot wiretap without the cooperation of the phone companies - they are owed a special protection.

Historically (according to Jonathan Turley IIRC), they have *not* immunized a company against lawsuit while not allowing some other means of redress. Changing the law does not actually make it constitutional, and if you have a valid constitutional argument on the claim that it wasn't legal, this would be a valid argument that Congress can't keep you from suing.

I think that's muddying the water between revoking the court's jurisdiction (which congress cannot do when a constitutional question is at stake) vs. creating an affirmative defense. I know that when the court analyzes the constitutionality of executive