After a closed session on Thursday, the House passed the Democratic proposal for amendments to FISA on Friday, the specifics of which were in Thursday's post. It appears that the Dems have realized the feeble objections of the Republicans were not unassailable and that they could even ignore or defy them at times.
In passing the bill, which will still have a tough time passing the Senate, the Democrats kept retroactive immunity out and put confidentiality protection for the telecoms in. However, this action only stood to prove that when Bush and his minions say 'compromise,' they mean 'do as we say,' as this seemingly reasonable compromise was met with predictable objections from the right.
In presenting these objections, proponents of blanket immunity only illustrate with ever-growing clarity that their arguments are as baseless as they are erratic. Tony Fratto with the current White House version:Their bill would make it easier for class-action trial lawyers to sue companies whose only offense is that they are alleged to have assisted in efforts to protect the country after the attacks of September 11.
Sorry, Tony, better luck next time. They're not charged with being helpful, they're charged with doing so illegally. But congrats on the ability to keep this charade of illogical tripe going with a straight face. And about the use of 'alleged.' If you want to cast doubt that the companies actually aided you, you might want to shy away from throwing everything you have into trying to protect them from prosecution. When I was younger, I used to try this by flinging myself on top of my mattress when my mother went to flip it. And it certainly wasn't because I had any magazines under there.
The 'they-we're-being-patriotic' reasoning is only the latest in the White House's series of arguments. This shifting is reminiscent of the lead-up to the Iraq War (Saddam's a bad man. No wait, he's bad and he has WMDs. Non-starter? What if he was responsible for the WTC? Umm...democracy. That's the ticket!).
Once upon a time, it was 'well, if immunity's off the table, the phone companies won't cooperate.' One has to assume that this was dropped as the main talking point once a pre-law student informed the administration that a company can't refuse to comply with a legally-acquired warrant. This is a point that is somehow missed in most discussions of immunity; a tragic failure to include a little common sense.
Then, it was 'well, even if it was illegal, the Justice Department said they weren't breaking the law.' Unfortunately for Bush, the Constitution and laws don't change based on JD advisement. But the Democrats even threw him a bone on this one, allowing the companies to bring those advisements to trial in their defense. So that talking point's out, too, I guess. What do you do when the opposition includes a provision that makes your rationale a moot point?
Bush and the Republicans have tried their best to stir up fear on the intelligence bill, but the more they speak, the more it becomes clear their arguments lack validity or substance. Every legal argument thrown out is shot down post haste, so they gravitate to the emotional. When that, too, fails to elicit the response they desire, they call secret sessions to stall and pretend to have some secret information we're all missing. And that's only after they decide they even want to stay in the room and talk about it.
Although this bill will die either in the Senate or the President's desk, it does succeed in showing just how ineffective the Republican fear machine has become, and that's a win for everybody.
Friday, March 14, 2008
Democrats Begin Bipedal Movement
Tuesday, March 11, 2008
Invertebrate Evolution
In a shocking turn of events, House Democrats have indicated that they do indeed have a semblance of a backbone. Granted, when all is said and done, it is unlikely to pass in its current form, but the Dems plan to unveil their version of amendments to the FISA statute on Thursday. FISA Amendments Act Bill Summary March 11, 2008 The revised House legislation to amend FISA grants new authorities for conducting electronic surveillance against foreign targets while preserving the requirement that the government obtain an individualized FISA court order, based on probable cause, when targeting Americans at home or abroad. The House bill also strongly enhances oversight of the Administration’s surveillance activities. Finally, the House bill does not provide retroactive immunity for telecom companies but allows the courts to determine whether lawsuits should proceed. Title 1: Surveillance Authorities · Provides for surveillance of terrorist and other targets overseas who may be communicating with Americans. · Requires the FISA court to approve targeting and minimization procedures – to ensure that Americans are not targeted and that their inadvertently intercepted communications are not disseminated. These procedures must be approved prior to surveillance beginning – except in an emergency, in which case the government may begin surveillance immediately, and the procedures must be approved by the court within 30 days. (This may be extended if the court determines it needs more time to decide the matter). · Provides prospective liability protection for telecommunications companies that provide lawful assistance to the government. · Requires a court order based on probable cause to conduct surveillance targeted at Americans, whether inside the · Requires an Inspector General report on the President’s warrantless surveillance program. · Prohibits “reverse targeting” of Americans. · Explicitly establishes FISA Exclusivity – that FISA is the exclusive way to conduct foreign intelligence surveillance inside the · Sunsets these authorities on December 31, 2009 (same as the PATRIOT Act sunset). Title 2: Litigation Procedures for Telecommunication Company Liability · Does not confer retroactive immunity on telecom companies alleged to have assisted in the President’s warrantless surveillance program. · Provides telecom companies a way to present their defenses in secure proceedings in district court without the Administration using “state secrets” to block those defenses. Title 3: National Commission on Warrantless Surveillance
The summary:
Most glaringly, they have not included a clause granting retroactive immunity to the telecommunications companies, a clause demanded by the Bush administration and included in the Senate version of the bill passed in February. As I stated in a previous post, immunity is the most contentious issue surrounding the amendments to FISA. I've already laid out my objections to that particular argument so I won't redress them here.
Instead of immunity, the proposal would allow the defendants in civil trials to present classified evidence in their defense to the presiding judge. This would be done in secret and the documents would not be publicly available. Inclusion of the clause comes from the administration's claim of "state secrets" which would have prohibited the phone companies from presenting these confidential documents in court, which would go a long way in establishing that they acted in good faith and are therefore not liable.
As it stands, good faith seems to be what defenders of immunity have gravitated toward, saying that regardless of the legality of their actions, the telecoms were acting in good faith and had assurances from the Justice Department that their cooperation in the Terrorist Surveillance Program was legal and legitimate. The proposal would grant them the opportunity to prove that the Justice Department had steered them as suggested and perhaps limit their vulnerability in civil trials.
Third, the proposed legislation would establish an oversight committee and require and Inspector General to report on the program. Seems good in theory, though we pretty much have evidentiary proof that the Bush administration will obfuscate and obstruct to the full extent of its imagination, so that clause is likely a wash.
In spite of the unlikelihood the legislation is passed as is, the Democrats are at least illustrating a little grit on a significant issue.
A couple of additional thoughts per previous discussion of the misinformation regarding immunity and FISA:
