House Says No To Retroactive Immunity

from the about-time dept

Fri, Mar 14th 2008 5:28pm — Mike Masnick

Despite a fear-mongering campaign filled with outright lies and fabrications, it appears that the Democrats in the House are actually asking the right questions about why we should grant retroactive immunity to telcos for potentially breaking the law in helping give the government access to information. They approved the version of the bill that they announced earlier this week, which would not get the telcos off the hook if they broke the law over the past few years.

Throughout this whole process, the one thing that has never been explained clearly is why it would possibly make sense to give the telcos immunity for breaking the law. There are perfectly legal means for the government to go out and request the information they wanted. To not go through those legal means makes very little sense, unless the government knew that it would not get approval. To anyone who claims that the government "needed" to do this, can you explain why they would "need" to do this without following the legally prescribed paths to do so? The US government is not free to do whatever it wants without oversight. That's why we set up a government with three separate branches to have oversight of each other. Otherwise, the system can and will be abused. What's happening here is that there appears to be quite a bit of evidence that the system was abused, and the White House (and the members of Congress who agree with the White House) are saying that we should ignore that. That seems problematic.

Luckily, (and, to be honest, surprisingly), it appears that some in Congress recognize this point, and are stating it quite explicitly. The EFF highlights the comments of Nancy Pelosi:

"Why would the Administration oppose a judicial determination of whether the companies already have immunity? There are at least three explanations:

First, the President knows that it was the Administration's incompetence in failing to follow the procedures in statute that prevented immunity from being conveyed -- that's one possibility. They simply didn't do it right.

Second, the Administration's legal argument that the surveillance requests were lawfully authorized was wrong; or [third,] public reports that the surveillance activities undertaken by the companies went far beyond anything about which any Member of Congress was notified, as is required by the law.

None of these alternatives is attractive but they clearly demonstrate why the Administration's insistence that Congress provide retroactive immunity has never been about national security or about concerns for the companies; it has always been about protecting the Administration."

Of course, this is not nearly over yet. The Senate still needs to vote on legislation and the President would still need to approve it -- and he's made it clear that he'll veto any bill that doesn't include immunity. For all his complaints that not having a bill approved would make the US less safe, it would appear that it's his demand for retroactive immunity that is actually holding up the bill's passage. There is nothing in the current bill that makes the country any less safe. The only thing holding it up is a desire to brush aside questions about whether or not earlier activities broke the law.

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Filed Under: congress, immunity, telcos, wiretapping

28 Comments

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Hellsvilla, 14 Mar 2008 @ 5:29pm

hip, hip, hooray
Three cheers for common sense!

...even if it doesn't last.
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Anonymous Coward, 14 Mar 2008 @ 6:22pm

Re: hip, hip, hooray
This little ammount of common sense will probably get squashed. Enjoy it while it lasts.

Meanwhile, it's been clear for a long while to anyone actually paying attention to what has been going on that the Administration (not just Bush, all of them) should have been put on trial.

With actual Jail Time as punishment. Bush has done more harm than good for the American people, even non-Americans realize this. Only the completely sideways blind Americans that can't see beyond their party and church congregation think otherwise.

Note, I think religion can be a good thing. It's a sad stereotype that most of the people supporting Bush claim to be Christian, yet miss the point of Christianity entirely. Why bring back the Crusades? That shit was senseless.
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Anonymous Coward, 14 Mar 2008 @ 6:49pm

While in most cases I am a Bush supporter, I don't think that the telecoms should get any immunity. There is simply no reason for this. President Bush says that without the immunity, telecoms would not provide needed info in the future. This is simply not correct, there are things in law that would compel the them to give information requested. "...anyone actually paying attention to what has been going on that the Administration (not just Bush, all of them) should have been put on trial." This is just stupid and along party lines as you say we should ignore. I think we've had enough witch-hunts lately, get over it. Congress and the Senate need to concentrate more on passing legislation than grandstanding and trying to show all their supporters how tough they are.
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Anonymous Coward, 14 Mar 2008 @ 6:56pm

After over a year of spinelessness, the Dems have finally grown some balls, and are taking a stand against Bush's creeping fascism. It's about damn time.

I guess 'cause this is an election year, they finally got off their asses.
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Krum, 14 Mar 2008 @ 7:05pm

There is a God...
There is a God...so far. They better keep this up. There was no reason for them to not go through the FISA court. I may be wrong on this, but as I read it, the government is able to spy on users, then they have 72 hours to get a warrant from the court. So it's "spy first, get permission later." This is the current system and they claim it's not "efficient enough" and they need to be able to basically act above the law. This type of thinking is not the America I love.
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melior, 14 Mar 2008 @ 7:07pm

It all depends on your viewpoint -- to grant one man "preemptive amnesty" is to deny another man his lawful day in court.
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KD, 14 Mar 2008 @ 9:18pm

Missing a
I believe the third sentence of the second paragraph is missing the word "not". Here is the revised sentence with the inserted word in capitals:

"To not go through those legal means makes very little sense, unless the government knew that it would NOT get approval."
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Rekrul, 14 Mar 2008 @ 9:40pm

It's amazing that Bush made it all the way to becoming president without anyone ever telling him that the presdient has to obey the laws like everyone else. He seems to think that his job title is "king" rather than president.
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Anonymous Coward, 15 Mar 2008 @ 12:48am

How do you break laws that in this country have been made of RUBBER - Good Luck with that
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Anonymous Coward, 15 Mar 2008 @ 4:00am

Yah! Does anyone else wonder how Bushie will be remembered in the history books?

Ha Ha Ha!

Looser.
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evilned, 15 Mar 2008 @ 4:06am

Time for a reality check
I've been following this for a while and it is now time for some people to actually think about a few things.

First, name anyone IN the United States that was illegally tapped. You can't.

There was one group that sued and it was dismissed because they couldn't show that they had actually had their phones tapped.

What is happening is simple. When FISA was first passed, most communications were routed via satellites and cables. For over a century the U.S. was monitoring those communcations.

Technology marches on. These days a surprising number of overseas calls go through American switches. The NSA, who's job it is to listen to hostile and potentially hostile people and countries, would tap these switches.

The two parties were not in the U.S. One could have been in the Philippines and the other in Germany. They are NOT covered by the U.S. constitution.

Occasionally they would get a hit that was in the U.S. and they would get a warrant. (FISA)

Now what happened is some moron judge decided to impose the need for warrants on calls not originating or terminating in the U.S. but just happened to go through a switch. This has had the effect of shutting down a huge amount of intelligence gathering capablity.

Remember, the U.S. is at war even if certain people don't want to deal with that fact. (See hole in the ground in NYC)

If this passes and we get hit again, and it's later determined we could have stopped it but were blocked by the courts, well, it won't be pretty.

It has been forgotten I think, but the 911 commission found that we had the data to put together the plot, but because of all the rules put in place the intelligence services could talk to the FBI. (The so called Wall)

To top it off, the one who wrote those rules was actually ON the commission. She should have been removed at that point and asked a few very pointed questions.

I forget which Supreme Court justice said this, but it goes something like "The Constitution is not a suicide pact."
(And no, this isn't one of the current members of the Court)
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Pooper Scooper, 15 Mar 2008 @ 4:08am

Overfilling
I just hope The Whitehouse Staff doesn't spraypaint the inside of the Whitehouse and steal the Country's best set of Silverware and Fine China like CLINTON'S team of "Whiners" did!

GO MCCAIN!
GO MCCAIN!
GO MCCAIN!
GO MCCAIN!
GO MCCAIN!
GO MCCAIN!
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Michael Brown, 15 Mar 2008 @ 4:13am

Re: Overfilling
This picture pretty much summarizes my feelings for all canidates.

http://pwbeat.publishersweekly.com/blog/wp-content/2006/09/barbietanner5.jpg
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Joshua Bova, 15 Mar 2008 @ 7:50am

Where's my phone???
I read this article just a day or so after hearing GWB's public statement on the radio promising to "veto any bill that didn't include..."

I have to say I had the strongest urge to call him up (anyone have his number?) and ask him just what the hell he was thinking asking our lawmakers to pass a law designed solely let others break the law.

WHAT THE HELL IS WRONG WITH OUR COUNTRY?
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Mike, 15 Mar 2008 @ 9:37am

Re: Time for a reality check
Of course no one can name someone that was illegally wiretapped... they won't release any of the information, and immunity for telco's insures it doesn't come out in court either. They have however been found to have abused the patriot act laws and used them illegally over 30 times. Now we should just trust people we KNOW lied to us? There is no valid reason to give immunity except to cover things up.
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Mike (profile), 15 Mar 2008 @ 10:36am

Re: Missing a
I believe the third sentence of the second paragraph is missing the word "not".

Ooops. You're right. Fixed now.
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moe, 15 Mar 2008 @ 11:17am

Re: Time for a reality check
You're being really disingenuous here, and I think you know it. If you don't, then your partisanship is actually affecting your logic. Your argument doesn't hold any water, and in some cases tries to rope in unrelated circumstances and sympathy (to paraphrase you, "remember 9/11") to cloud the picture.

"There was one group that sued and it was dismissed because they couldn't show that they had actually had their phones tapped."

Wrong, but nice try at twisting reality to fit your argument. The case that was dismissed was an attempt at class action lawsuit - it wasn't that no one could prove they were tapped, the case's premise was that they could have been tapped. The judge, rightly, denied this class action.

"Now what happened is some moron judge decided to impose the need for warrants on calls not originating or terminating in the U.S. but just happened to go through a switch. This has had the effect of shutting down a huge amount of intelligence gathering capablity."

I would like to know more about this one. Please provide some evidence of this. Right now, I'm tending to disagree since judges can't require warrants, the law does. Judges only decide whether to grant them.

"It has been forgotten I think, but the 911 commission found that we had the data to put together the plot, but because of all the rules put in place the intelligence services could talk to the FBI. (The so called Wall)"

That has absolutely nothing, not a thing you could somehow string together, to do with this. Further, it only proves the point that this warrantless wiretapping is not needed - before we even started warrantless surveillance we already had plenty of info.

Bottom line - if you want to do something that isn't currently legal, then you can't do it until the laws are revised to make it legal. That's the way this country is supposed to work. The chickens are coming home to roost - time to worry if you've been mucking about in ways you shouldn't have been.
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JFrink, 15 Mar 2008 @ 11:59am

wrong evilned
@ evilned -

Here are the details of the aggrieved US citizens who are challenging the legality of these activities:

NSA Multi-District Litigation: Documents Relating to All Cases and Dismissed Cases
https://www.eff.org/cases/att

In the future you should try and provide evidence to support your opinion. At least make sure that contradictory evidence can't be found through a simple web search before you go spouting off.
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JFrink, 15 Mar 2008 @ 12:16pm

more info
Here is the main info page for this issue at the EFF for anybody interested in learning more:

https://www.eff.org/issues/nsa-spying
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ChronoFish, 15 Mar 2008 @ 5:32pm

Re: Time for a reality check
"...First, name anyone IN the United States that was illegally tapped. You can't..."

I can't - agreed. Name one "plot" where this has protected the US. - You can't. Name one terrorist that was caught because of this program that otherwise could not have been caught through legal means. You can't. If the laws prevent us from getting the information we need, then there is nothing preventing the President from going to congress and requesting that the law be changed. But that wasn't done (after the fact maybe - but not before hand). If the law was broken, then the law was broken. No person is above the law - especially THIS president. No president has put us in MORE danger than THIS president. If you feel safer today than you did September 10, 2001 it is a false sense of safety. Given that Al Qada attacks every 7-9 years, the last 7 years of quiet is anything but proof of Bush's success.

-CF
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Senator Ted Stevens™, Creator of Laws, 15 Mar 2008 @ 9:48pm

Everybody knows that if we choose to do something it is legal, whether it is legal or not. Everybody knows that if you chose to do something, it is illegal unless we give you permission. So since we do the illegal spying on you, it is legal. If you do the spying, it is illegal and you will go to the doghouse.

So there.
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DCX2, 16 Mar 2008 @ 6:46pm

Re: Time for a reality check
Now what happened is some moron judge decided to impose the need for warrants on calls not originating or terminating in the U.S. but just happened to go through a switch. This has had the effect of shutting down a huge amount of intelligence gathering capablity.

Sorry, you're wrong. Foreign-to-foreign calls are not covered under FISA, and the NSA is free to wiretap without warrants regarding those calls.

The truth was that it was all over emails. (wired's Threat Level had an article on this) You don't know for a fact whether both the sender and recipient are outside of the country, and therefore it became necessary for a judge's approval.

Not that the bar for a FISA warrant is very high...
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mikelist, 17 Mar 2008 @ 1:50am

Re: telco immunity
the point of focus is misplaced, a trial against the telcos might actually find them not guilty, if the administration gets this fact they might have a win-lose/win-win situation.

a trial bias is relatively easy to set, and could give bush et al a 'vindication'.

it isn't about the telcos, it's about the administrative branch's ability to strong-arm anyone they choose into doing whatever they request.
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Ferin, 17 Mar 2008 @ 4:49am

Three cheers for spine!
Nice to see the dems finding some back bone and standing up to this idiocy. I'm glad to hear that they're finally pushing back and reminding people that this country was founded on the prinicple that unfettered government power without representation or oversight is a bad thing. Let's just hope it lasts.
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Anonymous Coward, 17 Mar 2008 @ 10:04am

Re: Time for a reality check
"If this passes and we get hit again..."

You would sell your freedoms and the freedoms of your fellow citizens out of fear for the future? I would rather live free and suffer for it than hand myself over to the control of another and consider myself 'safe.'
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DCX2, 17 Mar 2008 @ 1:00pm

Re: Re: Time for a reality check
I would rather live free and suffer for it than hand myself over to the control of another and consider myself 'safe.'

Especially since your appendix is more likely to kill you than Al Qaeda.

http://www.wired.com/science/discoveries/news/2006/09/71743
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soneone666, 18 Mar 2008 @ 6:38am

Re: Re: Time for a reality check
“Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one.” Ben Franklin
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SJL, 25 Apr 2008 @ 9:35am

QWest didn't go along...
One other thing that I think bears mentions is that QWest refused to participate. My opinion on this is that QWest knew the wiretaps were on shaky legal ground and therefore refused to comply. This one counter example of cooperation with Uncle Sam leads me to think that group-think or something other than national security drove telco participation in this chapter of history. Further, if my premise is correct (that QWest knew the wiretaps may have been illegal) then why did the other telco's not arrive at the same conclusion as QWest?
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