Power Line News

Cynick Al - 26 February 2008 08:08 PM

Actually, a reasonable good faith belief in the lawfulness of a request from the Executive Branch can be a complete defense in this instance especially since they were not permitted (on national security grounds) to inquire in detail about why particular records were sought.

So you’re saying that the government can order corporations to turn over people’s records and they have to do it without inquiring why it’s being done, even if it clearly violates the law.

That would make the U.S. a police state (in police states, the government always claims they’re doing everything for “national security grounds” too). Fortunately, the U.S. is not a police state and the government cannot use “national security” as an excuse to make people break the law. These corporations did not have to break the law because the government asked them to, and they should stop whining about how unfair it is that the customers they spied on are suing them.

If you actually read the report you would discover that the Senate collected all the correspondence between the telecoms and the government to evaluate whether there was any reason for the telecoms to doubt the lawfulness of the requests made. 

Again, this is not that complicated. The law says that spying on Americans without warrants is illegal. No matter what legal justifications the government tried to give the telecoms (and if they’re the same ones the Bush administration has been giving in public, they’re not very convincing), grown-ups have a duty to say “no” when asked to violate FISA, whereas these companies went along for the money and for cowardice. Cowardice is hardly a “grown-up” emotion.

The point of the Senate report here is that 9/11 created a sense of urgency among grownups to act to prevent another attack.  Because the program was born out of that urgency, it would tend to make grownups tend to cooperate with and rely upon federal programs designed to cope with the threat and to rely on the government’s assurances that this urgency had the force of legal authority. 

Again, the immediate hysteria and fear caused by 9/11 (and the anthrax attacks, which disprove the notion that we haven’t been attacked since 9/11) eventually gave way to the reasonable knowledge that terrorism is what it is: something to prevent, but not an eternal civilizational war that requires us to be on permanent bed-wetting alert. If you’re really saying that the “sense of urgency” after 9/11 should have been permanent, then you’re saying that all laws should be disbanded and disregarded if the government says it’s all right. That’s a pretty big victory you’re handing to the terrorists, giving up the rule of law because they’re so scary.

FISA was passed when we also faced threats. We always face threats. Only cowardly babies—including the Bush administration and Jay Rockefeller—think that threats make it OK to disregard the law of the land.

I missed the passage that says they can “buy their way”.  Do you ever have a moment outside of that liberal cocoon or do you always interject little ideological fantasies into whatever you read? This was a silly passage even for you.

Whatever. I don’t know if they “bought their way,” you’re right. I do know that if you or I broke the law as blatantly as the corporations did, the Congress would not pass a law granting us amnesty. Either you believe in equal treatment before the law or you don’t.

If a liberal partisan like Jay Rockefeller is willing to join with Republicans on a serious bill on a serious issue, it makes it more likely that his actions are substantive, not political. 

That doesn’t make sense. Rockefeller will say anything, left or right, if he thinks it’ll be to his political advantage. The fact that he wants to give the telecoms amnesty proves only that it’s good for political hacks like himself.

And Rockefeller is hardly a “liberal partisan”; he’s a fairly conservative Southern Democrat who is very corporate-friendly. He’s hardly right-wing, but if he’s a “liberal partisan” then Olympia Snowe is a right-wing extremist.

All those words and all those pages and RollOver STILL doesn’t know the difference between domestic intercepts and foreign.  “GW Bush is a fascist bogeyman and he will do all he can to abrogate our rights!” is the familiar refrain.

The POTUS has an obligation to ALL Americans whether or not left-wing whiners understand or appreciate that fact.  Instead, they just keep posting the same canard, day after day as if they can convince educated Americans.

It Aint Workin’

.

Mr Lynn - 26 February 2008 10:54 PM

Since no one has any plausible claim to have been injured or any private secrets revealed by any government signals intelligence monitoring, erroneously called ‘spying’, one can conclude that this alleged ‘spying’ is only a rhetorical device intended to mislead the public into thinking that the Bush administration is somehow breaking the law.

The Supreme Court sees it the way you do.  For example, they recently tossed a whiny liberal law profs suit because (a) there was no indication that these guys’ calls have ever been intercepted and (b) you don’t get to open up and fish around in a classified program just because you really, really don’t like George Bush.

Mr Lynn -

The pretension that the purveyors of this device are defending anyone’s ‘civil rights’ is just preposterous.  While the letter of the complex law regarding such intelligence operations can be debated, no one has been denied any rights whatsoever, nor is there any evidence that such government activity is in any way a threat to anyone’s civil rights…
In point of fact, the claim that the government is “spying on Americans” is a red herring designed to confuse and alienate the American people from the task of prosecuting the Long War on Islamism…

I agree.  The suits are a pretext to attack the programs as a whole. 

Justice Harlan Jackson famously wrote in a 1949 case (Terminiello v. Chicago, 337 U.S. 1 (1949)):

The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Under the guise of civil liberties absolutism, those attacking the programs are knowingly making us more vulnerable.

There is also the issue of damages.  If some Al Qaeda moron dials your Aunt Minnie by mistake and her number shows up in his call records and if Jack Bauer and his associates are tracing all the numbers that were called by the bad guy and they listen in on Aunt Minnie for 10 minutes (with or without a warrant) before realizing she is not a very productive lead, what exactly is the injury?

They cannot divulge the content or the fact of the call to any other federal agency.  They can’t call the Times-Picayune-Herald-Advertiser with the news that Aunt Minnie and Grace Lundquist conspired to steal Lucy Haverford’s recipe for lemon squares. (Hell, Lucy stole it from Mary Anne Simms’ Aunt Dorthy anyway, everybody knows that.) They can’t use it in any state or federal prosecution.  They cannot even make a record of what they heard.

Under the proposed law Nancy Pelosi blocked, they would have to report the fact of that listen-in to their judicial and congressional oversight whether they did or did not get a retroactive warrant.  I think Aunt Minnie would survive the injury--unless Jack Bauer wants that recipe in which case she may be toast.

Cynick Al, you’ve got a good grasp of issues, a classy posting style, and a great sense of humor.  It’s a pleasure to read your comments.

Tolliver - 26 February 2008 11:45 PM

So you’re saying that the government can order corporations to turn over people’s records and they have to do it without inquiring why it’s being done, even if it clearly violates the law.

You can’t assume it’s illegal as the starting point of every comment. You ought to start logging in as Rain Man because you don’t get it and you keep repeating things you should know by now are wrong.

The law says that spying on Americans without warrants is illegal. No matter what legal justifications the government tried to give the telecoms …. grown-ups have a duty to say “no” when asked to violate FISA…. whereas these companies went along for the money and for cowardice..

First, what does the “F” in FISA stand for?  If you guessed “foreign”, give yourself a point. Well done!  Under, FISA the listening in can be done when a “foreign” caller calls a “foreign” receiver without a warrant.  If you understand that give yourself another point. 

Second, nobody has proposed listening to what Americans say to each other on the phone without a warrant or said that was an OK thing to do.  The anti-terrorist feds can do that in a big emergency but they have to get a warrant later and under the law that Pelosi does not want to pass they would have to report that action to both their judicial and congressional oversight.

Third, (three things is a lot, so if you want to take a break and read this later that’s OK, take it slow because I can’t keep explaining this stuff indefinitely) call “records” are not the same as phone “calls.” The content of your call (what you say and hear) is not the same as the record of the fact that the call took place.  You might want to stop and reread that part, Sparky, you’ve been missing that point rather regularly.

When big NSA computers analyze call records to see if there is a pattern or common outside point in the calling bad guys do, this is called “data mining.” They do not need a warrant to do data mining because that does not involve the content of your call.  It does require the cooperation of the telecom to access (in real time) the computers that keep those records.  (See, they’re spying, Auntie Em! Auntie Em!—no, Tolliver, they’re not.)

Again, the immediate hysteria and fear caused by 9/11 … eventually gave way to the reasonable knowledge that terrorism is what it is: something to prevent, but not an eternal civilizational war that requires us to be on permanent bed-wetting alert… you’re saying that all laws should be disbanded and disregarded if the government says it’s all right. That’s a pretty big victory you’re handing to the terrorists, giving up the rule of law because they’re so scary.

FISA was passed when we also faced threats. We always face threats. Only cowardly babies—including the Bush administration and Jay Rockefeller—think that threats make it OK to disregard the law of the land….That doesn’t make sense. Rockefeller will say anything, left or right, if he thinks it’ll be to his political advantage. ,,, And Rockefeller is hardly a “liberal partisan”; he’s a fairly conservative Southern Democrat who is very corporate-friendly. He’s hardly right-wing, but if he’s a “liberal partisan” then Olympia Snowe is a right-wing extremist.

This was a pretty sorry mishmash even for you, Ace. 

FYI Rockefeller as a lifetime ACU rating of 9.6 (Hillary is 9.0, Russ Feingold is over 11).  He is officially liberal as hell. (You really ought to do some research before you toss off this kind of thing.) Speaking of research, weren’t you going to prove your allegations that the telecoms bought off Rockefeller?  I gave you the FEC records link.

And what exactly is the money you think telecoms get for “spying”?  Does the government even reimburse them for the time and hassle to let the NSA guys install their stuff at the call center?  Are they even reimbursed for the media used to provide data?  I don’t see an express provision in the Code of Federal Regulations for paying them for cooperation.  I think they may have to do it gratis but I would be happy to know the answer if you want to show me the money.

And thanks for the comforting news on terrorism.  I am glad to know it’s over. I think those guys in Waziristan thinking about killing us both even as a type this will be relieved to know it’s not a civilizational struggle after all.  You should go visit them and share the good news.

Al quote

“Third, (three things is a lot, so if you want to take a break and read this later that’s OK, take it slow because I can’t keep explaining this stuff indefinitely) call “records” are not the same as phone “calls.” The content of your call (what you say and hear) is not the same as the record of the fact that the call took place.  You might want to stop and reread that part, Sparky, you’ve been missing that point rather regularly”

Could call records also be called “THE PHONE BILL”?? I like things simple.

The odious tolliver got his name by virtue of his thoughtless defense of that charlatan Scott Beauchamp.  His style then was similar to his style here: mindless repetition of the same talking points.