US Senate Votes Immunity For Telecoms

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.

Presidential Candidates Votes

[vitaflo]

In case you're curious of how the respective candidates for president voted on the amendment to block retroactive immunity:

McCain: No
Obama: Yes
Clinton: Did not vote

http://projects.washingtonpost.com/congress/110/senate/2/votes/15/ [washingtonpost.com]

Re:Who voted for it?

[Anonymous Coward]

http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=2&vote=00015 [senate.gov]

Re:Who voted for it?

[bconway]

Worth noting: Barack Obama voted against telco immunity. Hillary Clinton couldn't be bothered to show up [washingtonpost.com].

Re:Who voted for it?

[10e6Steve]

Is this it [senate.gov]

To strike it, Obama voted for it, Clinton did not vote, McCain against it.

Re:The Republicans lied; the filibusters had a dea

[Shakrai]

Also, how did Hillary "Yes, Tim, national security is more important than human rights" Clinton vote?

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.

Clinton abstained

[pkbarbiedoll]

She decided not to jeopardize her campaign and just didn't vote at all. Obama voted against immunity. Most "blue dog" democrats voted for immunity.

Re:just great

[MBGMorden]

http://projects.washingtonpost.com/congress/110/senate/2/votes/15/ [washingtonpost.com]

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.

Inaccurate Heading

[micahfk]

Once again, another /. mistake:

Senators voted 67 to 31 to shelve the amendment offered by Sens. Christopher J. Dodd (D-Conn.) and Russell Feingold (D-Wis.). They did not vote for the bill yet (that's to come soon though).

Re:info request

[plague3106]

Not quite. If a law is rule unconstitutional, it is null and void. In the eyes of our Constitution, the law never existed to begin with.

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.

U.S. Constitution, Article 1, Section 9

[Jane Q. Public]

"No Bill of Attainder or ex post facto Law shall be passed."

It doesn't get much clearer than that!

(For those of you who do not know legalese, "ex post facto" means "retroactive".

Re:info request

[Grandiloquence]

No, retroactive prosecution is specifically prohibited in the Constitution. Retroactive immunity, however, is not.

This is not the will of the people

[soren100]

This is totally unconstitutional. And I can guarantee you that there are extremely few citizens out there thinking that telecommunications companies should not be held accountable for breaking the law and helping our government subvert the Constitution. Senator Chris Dodd has to filibuster his own party to try to prevent this from happening, and he said he did it because there was so much concern from his constituents.

Amendment IV of our Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I would make a joke here about not welcoming our corpo-government overlords, but I wish I could find more of a sense of humor about this type of thing. The founders of our country knew this was going to happen, and worked extremely hard to avoid it, and the citizens of our country are sleep-walking right into it.

Here's Senator Dodd's thoughts about telecom immunity [senate.gov]:

The President has no right to secretly eavesdrop on the conversations and activities of law abiding American citizens and anyone who has aided and abetted him in these illegal activities should be held accountable, said Dodd. It is unconscionable that such a basic right has been violated, and that the President is the perpetrator. I will do everything in my power to stop Congress from shielding this Presidents agenda of secrecy, deception, and blatant unlawfulness.

Re:You expected something different

[dennypayne]

Obama voted to block the immunity, yet you seem to be implying otherwise...

Denny

Re:Stunned

[Shining Celebi]

Well, that about wraps it up for (insert whatever right you thought you had).

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.)

Re:The Republicans lied; the filibusters had a dea

[KevinKnSC]

I think you mistyped that. In your link, a "yea" is a vote to strike the provisions granting immunity.

Re:info request

[krlynch]

Many types of laws can be made retroactive, but not all. The U.S. Constitution says (Article I, Section 9)

No bill of attainder or ex post facto Law shall be passed.

This has been interpreted by the Supreme Court to apply "only to penal and criminal legislation and not to civil laws that affect private rights adversely." (see next link) This prevents criminalizing activities that were not criminal when they occurred, or increasing the penalty after commission of the crime, or getting in through the back door by calling a change in punishment a change in "procedure". (Cornell has a good discussion here [cornell.edu] and here [cornell.edu] in their annotated Constitution).

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.

Re:U.S. Constitution, Article 1, Section 9

[Dachannien]

The Supreme Court has made a number of decisions regarding that clause that weaken it substantially. For example, sex offender registration [wikipedia.org] for offenders whose offenses were committed before the registration law was passed are still required to register. Another situation involves misdemeanor domestic violence offenders [wikipedia.org], who can also be barred from possessing firearms even if their offense was committed before the law barring firearm possession was passed.

Additionally, civil matters are generally not protected by the ex post facto clause, as well as laws that decriminalize an offense.

Re:Presidential Candidates Votes

[Svartalf]

In a typical amount of political weasel-speak, they worded the motion in such a way you had to re-read it at least once to parse
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.

Re:Who's on the conferencing committee?

[Red Flayer]

I assume it's not the whole House and Senate - so who will actually be making the decision about whether the House or Senate version gets in the final bill?

Both. The Senate and House must pass identical versions. E.g., there is no final bill until both Houses pass the same bill.

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.

Re:Presidential Candidates Votes

[Lost Engineer]

Of course she did it deliberately. The only way you could make her any worse on civil liberties is if you changed her name to Bush.

Re:U.S. Constitution, Article 1, Section 9

[ShinmaWa]

The President can only pardon a criminal action. What we are talking about here is immunity from civil lawsuits.

Re:Presidential Candidates Votes

[Chris Burke]

Privacy and wiretap laws.

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. ;)

Re:Only 26 Senators voted against this

[iamwahoo2]

Once again, Clinton chose not to vote on this amendment. That does not mean that she was not present. She was able to vote on the immediately preceeding amendments. She backed out of this one because she lacks integrity and backbone.

Roll Call.

[pyrr]

Source: http://holdfastblog.com/2008/02/12/fisa-vote-tallies-part-ii/ [holdfastblog.com]

"Voting with the Republicans were the following eighteen Democrats (again, rough count):

Bayh, Inouye, Johnson, Landrieu, McCaskill, Ben Nelson, Bill Nelson, Stabenow, Feinstein, Kohl, Pryor, Rockefeller, Salazar, Carper, Mikulski, Conrad, Webb, and Lincoln. Joe Lieberman also voted against stripping retroactive immunity.

Not present and voting was Senator Hillary Clinton, the only presidential candidate serving in the Senate to miss the vote."

There you have it, Republicans in lockstep, and those Democrats mentioned are traitors. Including Sen. Clinton, in her silence, she consented. The roll call for Sen. Dodd's attempts to strip the immunity provision out read much the same. I would like to believe that all those listed have no political future (and this of course includes "all Senate Republicans who weren't mentioned by name"). Sadly, I'm probably wrong on that.

Last Chance to Stop Amesty

[Doc Ruby]

The House of Reps passed their version of this bill without amnesty. When the two bills go into "conference", wherein the two chambers negotiate how to change their versions to come up with the single version that will be voted on in each chamber, the House can insist on no amnesty. Which, since amnesty did not pass in the Senate by an overwhelming (just a large) majority, the House might succeed in getting.

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!).

hand write or fax, emails get routinely ignored

[StandardDeviant]

Just an FYI, the common advice for getting a Congress member to pay any modicum of attention to criticism is to send it via some tangible form: physical mail or fax transmission. Emails and online petitions and so forth appear to be generally ignored or held in much lighter regard. You can get the appropriate contact information for your senators via looking them up here: http://senate.gov/general/contact_information/senators_cfm.cfm [senate.gov] (the equivalent for the House would be https://forms.house.gov/wyr/welcome.shtml [house.gov]). As for voting histories, those are likely available with more digging on either senate.gov or house.gov. I think this is the relevant roll-call record for this issue: http://senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=2&vote=00019 [senate.gov]

Re:Don't I feel suckered

[Bartab]

Numbers.
Check.
Please.
Thanks.

There are 51 Democrats in the Senate. 17 voted against this amendment (meaning they voted for telecom immunity).

90% of what now didn't vote for what?

You should be honest

[Bored MPA]

Politics are complicated, as are sound bites.

Obama abstained from the final vote instead of voting against the overall bill. And given the margin, calling out Clinton seems pointless (since positions are usually known ahead of time).

Re:Stunned

[homer_ca]

The Democrats have a bare majority in the Senate which passed the bill *with* immunity. Many Democratic Senators offered amendments to strip immunity or add oversight, but they were all voted down.

The Democrats have a bigger majority in the House which already passed the bill *without* immunity.

Senate Voting History!!!

[newgalactic]

Here's a link to the recent senate voting records including the FISA bill. Go there regularly, monitor your senator. It's WAY more important then anything else on this site. http://www.senate.gov/pagelayout/legislative/a_three_sections_with_teasers/votes.htm [senate.gov]

Re:The Constitution and resistance to change

[evought]

There's a difference between retarding rate of change and blocking certain changes. Fast-changing governments are inefficient and unstable, but so are governments literally incapable of listening to their people. We're fine for now, because we are running into problems (that need to be overcome) that were predicted by the founding fathers, but it's inevitable that things will change whether our society likes it or not.

Sure and they do, they have, and they will continue to. How many amendments do we have?

As an example, the second amendment protects every citizen's right to bear arms. That was a fair call back in the late 16th century, when power was unstable, and people were more accountable for their votes. It was a necessary protection to ensure that people felt secure in using their due influence on the government. Nowadays, there's very little need for it, now that the country is large and its people largely anonymous parts of a huge crowd. Politicians and zealots alike are no longer capable of threatening the public, and most of the people live in the cities, where there isn't much call for a gun, except for protection against other guns. The right to bear arms is only relevant today because it has continued to be granted for so long, that now any potential criminal can get their hands on one. Any attempts to institute gun control are now not only futile (because pro-gun spokesmen can claim it as a constitutional right), but detrimental as well, despite what it does for the murder rate.

I cannot disagree with this strongly enough, especially the idea that governments are somehow harmless today. The right to life is one of the most fundamental. If I do not have the ability to defend my life, I have no other rights. The police rarely get to the scene of violence in time to prevent anything. Also, many people still live outside of cities where guns are as much tools as weapons (e.g. protecting my sheep from coy dogs).

Lastly, I think the UK has amply demonstrated that taking away guns cannot be done successfully enough to change the equation. In urban areas where they have had success seizing weapons, thugs *rent* weapons out for crimes, plus the fact that knife and other kinds of muggings, convenience store robberies have gone up because they know people are defenseless. Police often refuse to go after the criminals because no one was hurt, so violent crimes take priority (apparently some corners/stores are robbed pretty much on a regular schedule). Yes, their gun crime went down some, but it simply displaced a lot of the crime, and it did not go down enough that I would be comfortable giving up my right to defend myself when I know (and have experienced) that the police will not and physically can not defend me. An attorney locally in a city council meeting was reduced to throwing chairs at a shooter to try to defend himself after the attacker killed two police officers guarding the room *and took their guns* for use against the room's occupants. One of the council members actually had a carry permit but did not have his weapon with him. Bad mistake: carrying the thing for a hundred years without needing it is better than needing it once and not having it.

Re:Stunned

[Anguirel]

Google is playing by China's rules by adhering to their laws (even if it isn't necessarily moral). The Telecoms colluded with government officials to break the law (which wasn't necessarily immoral). The difference here is that what Google is doing in China is legal (since China has made the law such that it can be) and what the Telecoms did was illegal.

Re:Last Chance to Stop Amesty

[Doc Ruby]

The House has already indicated that it wants amnesty rejected, by passing their version of the bill without it, even as amnesty faced very vocal (though ultimately failed) opposition in the Senate. And John Conyers (D-MI), Chair of the House Judiciary Committee, sent a letter to head White House lawyer Fred Fielding insisting that there's no basis for amnesty [dailykos.com]. The House Intelligence Committee also rejected amnesty in approving the House bill. The Senate counterpart to Conyers' committee, the Senate Judiciary Committee, was the one that produced a Senate bill rejecting amnesty (that failed to pass the Senate); the Senate committee chair Patrick Leahy (D-VT) denounced amnesty as his bill was defeated, in solidarity with the House provisions. House Speaker Pelosi [google.com] helped rescue the House bill from an October attempt by Republicans to stop it. So I think the House version of this "RESTORE Act" [sourcewatch.org] is a serious attempt by the House (its Republican minority notwithstanding) to stop amnesty.

But you're right not to have "faith" in politicians. Faith is a way of knowing something that can't be proven, and no one can know what these liars will do until after the check has cleared. But hope is different. It's a way of wanting something that hasn't been proven, fuel for doing something to get it. Which is why signing the petition [firedoglake.com] to pressure the House to stand by its partial progress against amnesty is worth doing. Because giving up hope means being defeated, and that's how you help the forces against you win. Signing the petition is another small but useful blow against them.