Sorta ot, when the new congress convenes do we get new speaker and majority leaders? Do we get a say in who they are, or can we tell the DNC who we want? I forget how that works God we need to get rid of Reid and Pelosi. Maybe say Dodd or Finegold majority leader and Kucinich speaker, now there ’s a set of brass ones that could do something.

Thanks EW makes me feel better after this weeks square dance in congress.

Thanks for the update. For a non lawyer like myself these types of posts are quite useful.

I know it is a hypothetical but I’ve stated before I believe it is within the realm of possibilities the Bushies aren’t leaving. Go into Iran, declare matrial law, etc. After something like this why would they think the Congress or anyone else would stop them.

Politically, it is hard to imagine this or the next House or Senate doing anything but licking their coats and whatever else they can reach, and padding softly over to sit by Uncle Dick’s fireside, ready to growl at any passing civil libertarian.

Out of six hundred odd CongressCritters, only a few know anything at all about the Surveillance State programs they’ve just institutionalized and protected from harm. Both parties have ignorantly marched in lock-step to remove this issue from their and the public’s purview. Why? Because the least competent or popular president in modern American history, with a history replete with stonewalling, lies and Orwellian obfuscations and a track record of deceitfully implying one thing while doing another, told them it was necessary “to keep us safe”. It makes me reach for the oil of clove, because I know that somewhere in the dark, Szell is holding his dentist’s drill.

Not that I believe that Congress or the President believe that. But they chose publicly to appear to back him for their own, non-public reasons. I would call that reckless lawmaking, intentionally disregarding their duty to inquire and oversee. It’s not spineless. It’s corrupt.

That said, once telcos take action that reasonably relies on their being immune from suit, eg, admits participation, asks for more lucrative participation, legitimately destroys records, etc., then I agree with bmaz. This legislation’s grant of immunity becomes irrevocable – as to past conduct. Meaning that a competent Congress could change its mind and restructure these programs and redefine what constitutes “reasonable search and seizure”.

I contend, however, that a principal reason for this legislation — why so many lawmakers knowingly followed a corrupt White House into the constitutional night — was to make legit, to make permanent, the new “intelligence services” segment of the Military-Industrial-Congressional-Services Complex. If so, Congress wouldn’t dream of changing the rules, except to make them more favorable to those now indispensable services and those who provide them.

Thank you so much for this post, bmaz.

I wonder how many justices are rubbed the wrong way by this move by congress ie cutting them out of the loop.

sorry for the structural errors in my post..

cause and effect
Journalists Chris Hedges and Naomi Klein of The Nation said the law creates a chilling effect on their international reporting — since their jobs requires speaking with overseas parties that often work against American objectives, their contacts might be wary of further communication. Hedges, in particular, says that one of his sources – a secret contact close to Hamas – is already more hesitant to speak openly.

Hedges compared the passage of FISA to the tactics of authoritarian regimes he had previously worked inside, noting that their objective was to openly “prevent any dissidents, anybody who had information that countered the government” from contacting him.

Here’s a shot from a bankruptcy lawyer, not a noted Harvard Constitutional scholar, looking at the merits of the complaint.

The leading case on the question of privacy in electronic communications is US v. US District Court, 407 US 297 (1972), available here. The complaint points to direct conflicts with the Supreme Court’s opinion in that case.

As the Fourth Amendment is not absolute in its terms, our task is to examine and balance the basic values at stake in this case: the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression. If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.

Id. at 314-5.

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 389 U. S. 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

Id. at 316-7.

The independent check upon executive discretion is not satisfied, as the Government argues, by “extremely limited” post-surveillance judicial review. Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. Beck v. Ohio, 379 U. S. 89, 379 U. S. 96 (1964).

Id. at 317-8; fn omitted.

The complaint raises these matters in paragraphs 39-43.

Part IV of the Supreme Court’s opinion deals with the differences between criminal cases and domestic surveillance cases, and carefully draws a distinction between domestic and foreign surveillance. It looks to me like the original FISA was grounded in that cautionary section. For example, the Court notes that Congress might recognize that in dealing with domestic security, other standards might be appropriate.

It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518, but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in § 2518.

Id. at 323.

It is this cautionary language that will be the legal grounds of the case, I bet.

This is probably a dopey question, certainly not on the level of the great conversation I’m always reading here, but would someone tell me why the vetoing of the Bill is cited as one reason Dem’s passed it?

I mean really, to quote Darth:
SO?

Dumb and dumber.

That seems to be the Democrats strategy for this session of Congress. “Yeah, we may be dumb about asserting our Constitutional prerogatives, but the Republicans are dumber, so come November Americans will vote for us and not them. HAhahahahah!” Meanwhile, public admiration for Congress is non-existant.

There used to be some pride Congressfolks took in their institution. Not any more, apparently.

Makes me real proud to be a Democrat.

Bob in HI

These letters to the NYT this morning, on the recent FISA cavein by a parade of gutless dems who talk tough and roll over and get pissed on by Bush with regularity including Sheldon tough mouth pansy ass Whitehouse and the insipid pure bread moron Diane Feinstein was on point. Never in one week haveI see so much lying completely contemptuous of the American public many of whom deserve the contempt because their laser focus is on Madonna/A-Rod. The day of the FISA vote I could not run into one person who didn’t respond to the words FISA vote with “Huh–What’s that?” Rove, FISA, they go straight to America being in the toilet but they are completely off the American radar.

To the Editor:

As a repeat donor to the Obama campaign, I was bitterly disappointed in Senator Barack Obama’s “yes” vote on FISA on Wednesday. Several times during the campaign, Mr. Obama swore that he would fight against, and filibuster, any bill that provided retroactive immunity for FISA violations. On Wednesday, he voted to pass just such a bill.

Although Mr. Obama has shown many heterodox positions, this is completely different. With this bill, he broke his promise, for the sake of capitulating to the Bush-Cheney administration and gutting the Constitution. This betrayal by Mr. Obama is as baffling as it is inexcusable. He has lost my support.

Bryan Erickson

Eagan, Minn., July 10, 2008

•

To the Editor:

The analogy between Senator Barack Obama’s yea vote on Wednesday for the FISA amendment act and Senator Hillary Rodham Clinton’s yea vote in October 2002 for the Iraq resolution is not to be missed or understated.

Mr. Obama did not want to hand John McCain a cudgel with which he could be attacked as soft on terrorism during the presidential campaign. But is that not precisely the reason Mrs. Clinton, who at the time still had not decided whether to run against the incumbent George W. Bush in 2004, voted for the authorization of military force in Iraq?

In each case, passage of the bill was a foregone conclusion, so the only effect of a negative vote would have been potential harm to an imminent presidential bid.

Is Mr. Obama now ready to concede that Mrs. Clinton, rather than showing poor foresight, was just exercising good political judgment? James Tocco

Cincinnati, July 10, 2008

I just got an email from the woman who helps run the Obama organization in my state about an organizational meeting and of course money and I brightened up her day with the high points of what the FAA (not the idiots who almost caused a second crash at Kennedy and will get one soon) but the FISA Amendments Act of 2008. I also shared her my math triumph fresh from my second grade education in “how to takeaway” mirrored by my 9th grade Algebra I course.

Rich Lady Have $200,000,000

Penn, Mandy Gruenwald and Small Venders Owed $12.000,000

Clinton lady who stood in back of pickup owes herself $11,000,000

$200 million or somewhere close takeaway $12 million leave $188 million.

Why rich lady ask me for money when she have between one hundred and two hundred million dollars?

I no stupid but maybe close. I tell them stuff it. I no work for Obama vote for FAA. I no give money to rich lady who have $188 million already more than she owe.

I work for down ticket Senate Candidate only.

Rich Lady Owe Small Venders and Predominantly Mark Penn $12 million (Mark Penn have wife Nancy Jacobson who invites you to $10,000 seminars in which she promises Kevin Spacey and Laura Dern because Penn Wife believe rich people like to buy People Magazine presences for a couple of hours even though Spacey has no intention of showing up)

Q: Would it be enough for the court to strike article II (immunity) or would the FDL/Emptywheel readers require the entire law to be stricken before their bloodlust is satiated?

Q: Do we know much of anything about the NY judge who will handle this case?

What I want to know is,
Why does the legislature pass a piece-o-crap bill like this and then expect the courts to toss it out?
Wouldn’t it be a lot cheaper and easier to simply not pass it in the first place?
When did it become the legislature’s job to be just an unthinking rubber stamp?
and
Did George issue a signing statement on this one, or was Darth so busy doing a Happy Dance that George didn’t get handed one?