Vaughn Walker Dismisses Challenge to Retroactive Immunity
Wired reports that Vaughn Walker has dismissed EFF’s challenge to retroactive immunity. (h/t scribe) Plus, Wired will probably be reporting on how Anthony Coppolino recovered from his long week of dancing in the al-Haramain suit. So by the end of the day, we should have a better idea of whether we’ll ever hold the government responsible for violating FISA.
I’ll be reading Walker’s order as I drink my pre-flight beer (I’m going home!! We’ll see whether MI has survived a bruising week.) I’ll update as I’ve got more to say.
Update: We’re discussing in threads that Walker seems to set this decision against the Jewel case which sues Bush personally. I’ve been arguing that we might get a positive ruling from Walker in one or the other case, but not both, based on the legislative record. This is an example of what I mean:
The SSCI Report included among the committee’s recommendations for legislation amending FISA that “narrowly circumscribed civil immunity should be afforded to companies that may have participated in the President’s program based on written requests or directives that asserted the program was determined to be lawful.”
Jello Jay also maintained that this left open suits against the government. Which means I think Walker sees them (and the legislative record) as the way to move forward on one.
Update: Walker also dismissed the state suits. Here’s the order. And the conclusion.
The United States’ motion for summary judgment in United States v Clayton, C 07-1242; United States v Reishus, C 07-1323; United States v Farber, C 07-1324; United States v Palermino, et al, C 07-1326; United States v Volz, et al, C 07-1396 is GRANTED. The state proceedings at issue in each of those cases are prohibited by section 803 (50 USC § 1885b) and are hereby enjoined pursuant to this court’s authority under that statute. Clayton et al v AT&T Communications of the Southwest, Inc, et al, C 07-1187 is DISMISSED with prejudice.
The United States is directed to submit a proposed form of judgment in accordance with this order.
Update: To add to what JimWhite said in comments, this ruling is pretty much a warning shot across George W. Bush’s bow.
The United States and the telecommunications company defendants counter that while suits against telecommunications companies are foreclosed, neither the statute nor the government’s actions prevent plaintiffs from seeking redress for their constitutional claims against the government actors and entities. Doc #520 at 12. Lest any further reassurance be necessary, the SSCI report states: “The committee does not intend for [section 802] to apply to, or in any way affect, pending or future suits against the Government as to the legality of the President’s program.”
The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities. Indeed, the same plaintiffs who brought the Hepting v AT&T lawsuit (C 06-0672 VRW) are now actively prosecuting those claims in a separate suit filed in September 2008 against government defendants before the undersigned judge. Jewell v United States, C 08-4373 VRW, filed September 18, 2008. Jewell thus joins several other cases in this MDL which seek relief only against government defendants.
As I’ve been saying, Vaughn Walker has been saying, quite clearly, if Congressional intent matters in dismissing the telecom suits, it sure as hell matters in allowing Jewel to go forward.
From page 12, this gives some hope on Al Haramain and other suits against the government:
[Thank you, Judge Walker for producing a pdf that we can copy from!]
Yeah, I’ve long believed you could have either or: the Bush suit or immunity. And I suspect there will be stuff in the hearing today that at least telegraphs where that one is going.
I am just starting to read the order at page one; that said, prior to today, I never thought it had to be one or the other.
See, I kind of believe it all depends on the legislative record (that is, Jello Jay), so if you take Jello Jay saying, gotta have immunity, you also take him saying, gotta be able to sue Bush.
Yeah, we could have gotten really lucky (and per JimWhite, Walker’s leaving the door open). But I just didn’t think so–he’s obviously working all these together, so they seem to be complementary.
so is this a win, a loss, or kicking the can down the road
I’d like to hear the call from bmaz an JimWhite too
it ain’t a knockout, so let’s go the judges cards
usin Da buffer voice
laaaaaaaaadddddddddddiiiiiiiiieeeeeeesssssssss aaaaaaaannnnnnnnndddddd gggggeeeeeeennnnnnnnnnntttttttttllllllllllleeeeeeemmmmmmmeeeeeeeennnnnn
please direct your attenrion to center ring for the judges decisions ….
(after the first 5 comments, I couldn’t help myself)
Jeeminy = I just read through (not starting at Page 1 though, *g* and not covering every piece) and this is one damn intersting opinion.
While I don’t think you have to have one or the other either, I think Walker does a pretty damn nice job of framing this so GOv is collaterally estopped from arguing that they can just invoke state secrets and walk off from liability in the direct suits. The specific holding that the reason the amendment to the statute is ok is bc it preserves the alternative forum of pursuing gov can’t be an illusory avenute without setting up the ruling on the statutory change being acceptable bc of the alternative forum from being set aside.
There is so much in this opinion – it is one of the most interesting I’ve read in a long time.
More reason for hope: on page 45 we learn that the dismissal is without prejudice and Walker provides guidance for amendment and re-filing:
This seems to be based on the new reports of continuing warrantless wiretapping that is now outside the window of dates Congress put into FISAA. Will we be getting FISAA II to plug that hole?
I thought it would have to have been one or the other only after they started hammering Congress to pass laws to make it safer for criminals.
I just finished reading it and here are my initial impressions:
1. He’s made clear to the Telcos that they are, now, indisputably, the AG’s bitches.
2. He’s made clear that this applies only through 2007 and, since it appears the surveillance continues, that it’s still a live case as to that issue.
3. He’s provided a road map of sorts for plaintiffs to challenge the practice under the non-delegation doctrine. That’s the core of it but, since Congress has spoken (of sorts), under Youngstown the plaintiffs have a harder row to hoe.
4. This opinion is a pretty straight, neither fish-nor-fowl type. I think he had this on the table and wanted to clear it off before getting to the really meaty case. I think he recognized from jump that this statute would almost certainly preclude the Telco suits and that he just wanted to get this off his table.
5. He correctly notes the Iqbal problem. I noted elsewhere today that Iqbal is a prime example of Roberts’ appointment paying dividends to the corporate interests he was destined and selected to serve. He won’t have many balls and strikes to call, let alone controversies, since he will have succeeded in closing the courthouse door ab initio.
You will recall the Iqbal v. Ashcroft case decided the other week in the S.Ct. It went off on the basis that the claims were not pleaded sufficiently to survive a motion to dismiss. Not that they were false, mind you, but merely that they were not connected, directly and plausibly enough, to a substantial set of facts to survive a motion to dismiss. This was an outgrowth of Roberts’ first “big” opinion – Twombly v. Bell Atlantic, a couple years ago.
Mind you, the Federal Rules of Civil Procedure incorporate, in an appendix, standard forms of complaints which are (supposed to be) sufficient to use, with only inserting the names, addresses and such of the parties and dates of the wrongdoing and such. Under Twombly and now Iqbal, using those complaints may not be sufficient to survive a motion to dismiss for failure to state a claim.
Here’s an article telling corporations (the real beneficiaries of the Iqbal and Twombly rulings) how to go about using them to get rid of all sorts of litigation.
The article’s conclusion:
This is really yet another Republican reaction against the New Deal – the F.R.Civ. P., and liberal discovery, were the fruits of the huge 1933-38 reforms of the federal judiciary, not the least of which was the change from “fact” pleading to “notice” pleading. Roberts is busy turning back that clock.
In the context of this case, then, the Iqbal problem is inexorably tied up in state secrets. Even with a leak of classified information in hand, the wronged plaintiff may not have enough to go forward. That would be not because he could not plead all the elements of his case but, rather, because the trial judge deemed the facts he did plead to be “implausible” in the light of his judicial common sense and experience. Given that the federal bench is stocked almost exclusively with former corporate attorneys and prosecutors, who have all their experience in making one side of the argument and little problem agreeing with the arguments they used to make as lawyers and less problem dismissing as implausible the arguments they used to oppose, you can expect that the ordinary person presenting a case of corporate wrongdoing with facts-in-hand will be dismissed as implausible. Twombly and Iqbal provide a wholly standardless discretion to federal trial judges, and allow them to find facts plausible or implausible as they see fit.
Or, to borrow Roberts’ construction, it gives judges a moving strike zone and no QuesTec to keep them honest.
Wow. awesome work.
EW brings home the hardware, but her commenters totally rock too. :]
Yes they do.
And can you believe it he emailed that to me before I kicked his ass and made him share?
Thanks for that. I’m savoring the image.
Great work on your part, needless to say!
Good discussion of Iqbal – nice job. I like the shot Walker takes at it in his implicit advice to plaintiffs on amendment under the “ever morestringent” pleading rules. Personally – I’m waiting for Roberts to re-sever equitable and legal actions and require separate legal and chancery gts again – and to heck with notice pleading.
COnsider this an inning or one quarter in a game. The home team lost this inning/quarter. But to win this inning/quarter, the bad guys had to foul out, so will be much weaker for the rest of the game.
Manager Tom Gomboa “We didn’t lose, we just ran out of innings”?
Outstanding comment Scribe.
And, yes, Iqbal may be the death knell of notice pleading. Good for lawyers and their billables though.
My partner once described notice pleading as: Jed’s dead and the railroad killed him.
Hey, if he named the railroad, said what day Jed was kilt and why it was bogus, that should be good enough!
Objection, yer honor
I’m thinkin that everybody on the jury knows which railroad we’re talkin about
an they was all at Jed’s funeral, so they all know when Jed died …
(wink)
That’s a reasonable complaint and, as BMAz says at 12, if you name the railroad, where and when, it should be sustained as a sufficient notice pleading.
Not really good for lawyers. The sophisticated lawyer will be able to use it, but the generic schlub will have no idea about it and wind up getting blindsided every time. Those that survive will [have to] go elsewhere.
The problem is, the sophisticated (corporation-representin’) lawyers will get some quantum of billables out of killing off the cases brought by the schlubs, but they can’t make a living without adversaries who can bring winnable cases. Along the spectrum of rational and not-so-rational economic actors, lawyers tend more toward the “rational” end. After we figure out how to practice, we tend to do only those things which result in our making money. People call us for help, but we only return the calls when we have a retainer or a live case in hand. Sad, but true.
I saw this in the personal injury practice in the 90s and first half of this decade. The so-called “tort reform” laws which were so popular among legislatures in the 90s made the small, bread-and-butter PI cases uneconomic. The neck or back injury that would have settled for $5k or $10k was now no longer even actionable. Lawyers got really good, really fast, at weeding out those cases from their dockets because they would not get paid for their time and trouble if they brought them. But the defense counsel – working for the insurance companies – suffered a similar fate. Without that flow of small cases (which had to be defended, too), the defense counsel were not able to meet their billable targets. You had to spend just as much time on a calendar call when you were defending a $10k case as you did for a $1Mil case.
The small cases didn’t pay much, but they brought people in the door and allowed building a practice by building a network.
This is just another manifestation of that same problem. In killing notice pleading, Iqbal will make the smaller cases uneconomic. And you can count on the principles of Iqbal working their way into state courts thatquick. By way of example, my state’s courts use standardized interrogatories and have for many years. After well over a decade of dealing with discovery motions objecting to answering them on every ground that one can use to object to interrogatories, the Courts had to explicitly add to the rule imposing the standard interrogatories that they were not objectionable.
You’ll see something similar with the standard form pleadings, but it will likely never happen that the S.Ct. will say that the standard form pleadings are non-objectionable.
in that case a template can be prescribed
“tell ‘im the good news, Mortimer…”
Jeebus.
Could Walker be telegraphing any more?
hint hint!!
Sue their asses for shit they did after 2007.
(Which pretty much suggests they’re still tapping al-Haramain, but who’s counting)
Told you so.
The problem is winkling out enough post 1/07 surveillance information so as to surmount Iqbal and Roberts’ moving strike zone.
You got an Oxdown on that? Or did I just miss it?
(hint hint)
It’s all pretty much in the comments I put up at 6 (sub 3.) and 13 above.
The more I look at the Egan stuff, the more I conclude he looked at it, nodded that, indeed, (a) this is classified and (b) I don’t have to address it in more detail than to say it’s in the sealed part of the file because, in this case, I don’t have to address it.
What I take away from the Egan references in this opinion is that he recognizes the Executive is primary – but does not have primacy (there is a difference) – in handling and protecting classified information. He is also saying that he (and the Judiciary) can demand and must get access to classified information (and, implicitly, that it is within the power of the Court to compel sharing that with plaintiffs – I bet he’ll decide that more explicitly in al-Haramin and compel the government in a non-appealable way to give access). Similarly, he does not need to address – in any meaningful way – the plaintiff’s claims about being denied due process or other rights because of the classified nature of the certifications or allegations in them because he’s really addressing the scope and import of the retroactive immunity provisions. He has to, and did, look to precedent to see whether it supports the creation of a retroactive immunity regime, but does not have to address the substantive nature of retroactive immunity. Rather, the question he’s confronting is more procedural – did the creation of this device through which the executive exercises power meet the requirements of the law and Constitution (as interpreted by precedent) in the “non-Delegation doctrine”. To that end, he says “yes, but barely”. That’s a nice touch, because he’s telegraphing to the 9th Circuit that they can (and maybe should) rule the other way once they get it (as he knows they will).
Since this is a decision on a legal issue, of course, on appeal it is entitled to no deference. Thus, he has put the plaintiffs in a pretty good position – de novo review on a legal question and a strong implication that it might have crossed the line. By ruling that way, he has both avoided making the Government and the Telcos “aggrieved parties” and therefore precluded an appeal (remember, you can only appeal from orders which aggrieve you and when you win, you are not aggrieved), given the plaintiffs a road map to meet the requirements of the statute and shown them a hole (the end of the immunity as of 1/07) in the government/telco’s case which you could drive that ‘71
ImpalaCaprice Wagon through sideways with Mitt’s Irish Setter strapped on top.All in all, while the plaintiffs “lost”, they didn’t lose badly and, even can look at this as a win. If the plaintiffs had, in fact, won, they would not have been able to amend their complaint to try to meet Iqbal and most definitely would have met that head on in the appellate court. The government would have raised the issue that the trial court did not give Iqbal its proper due and would have won outright on appeal – with the plaintiffs getting no chance to appeal because of the “plausibility” issue that the 9th Circuit could have exploited.
So, talking baseball, the defendants got a couple runs in their first inning, but did not knock out the plaintiffs’ starter.
He gets even more direct than that –
And again with legislative history:
“The ruling also means that the public may never know how the Bush White House coaxed the telecoms to participate in the program without court warrants, as the Electronic Frontier Foundation alleged in a lawsuit lodged in federal court here three years ago.”
The public is somehow not going to be surprised.
Judge Walker’s message Telecommunications companies and the Bush administration are ABOVE THE LAW.
No surprises here.
Jane Hamsher, upstairs at the Mothership…
Husband of Dr. Tiller’s Patient Gives Heartbreaking Account of Procedure
One ringy dingy
Mr. Beetle we are not subject to city state or federal regulations
http://www.youtube.com/watch?v=k9e3dTOJi0o
I have quickly read Judge Walker’s opinion and I do not agree that he finds the Bush Administration to be above the law. In fact, my cursory reading indicated the opposite to be the case.
“Beetle”
“Vidal”: as in “Gore”; spelled with a “v”, as in “volcanic”, being the state of one’s temper on sufficient provocation by a course of harassment, humiliation, outrage and travail inflicted by federal officials over a number of years, such as the FBI under Hoover, particularly during the coarse [sic] of the Nixon administration, contributing to a determination to establish foreign residence — otherwise now well-realized as a taste of what government under paranoid authoritarians are capable even in a constitutionally-established democratic republic; deliberately mispronounced for simultaneous comic and ironic effects.
OT: just got a link to a torture apologia. All the bullshit in one location:
Here.
I’m still wondering how then White House Counsel Fredo’s authorization (as opposed to AGAG) of the warrantless wiretapping has fallen through the cracks.
It never met the immunity provisions of FISAAA which allows for dismissal only:
Clearly, Fredo had no statutory authority to approve warrantless wiretapping, the surveillance actually did occur, and Fredo’s signature does not in and of itself make it an “authorization by the president”.
So Legal Eagles, why is Judge Walker allowing that particular instance of warrantless wiretapping a free pass under the umbrella used for those signed off by the Attorney General?
Wiretapped critters want to know!
The document that provoked the almost-resignations of Comey & Co. had two signature lines. The first line was for Bush, and the second for the DOJ. When Comey refused to sign line two, Addington redrafted the document and had Gonzales sign it.
Bush did authorize it, but did so not on the advice of his DOJ but on the advice of the WHCO.
(per Angler)
Per Angler? Per ew!?!?!
That came out in the SSCI report, after all.
MD, nobody has plead that with particularity, because only one plaintiff knows they were wiretapped specifically during that operative period; and that is al-Haramain. As Marcy said, they are in Walker’s court right this moment for the followup to last Friday’s filings on order to show cause why liability should not be assessed by the court.
If I were the Obama DOJ, I would not be jumping up and down at this ruling. They got the result they wanted, but the overall tenor of the opinion is not at all positive toward the government’s position.
Again and again, Walker points out how poorly crafted the law is. In contrast to standard procedure, he says, I’m forced to look at the legislative history because the statute has such holes and omissions in it.
And, as has been noted above, he all but begs the plaintiffs to refile, especially with regard to activities post Jan 7, 2007.
The DOJ attorneys handling al-Haramain will be reading this carefully, and they will NOT like what they are seeing.
DOJ attorneys handling FISA are before Judge Walker as we speak. Hopefully getting their ass handed to them.
You bet – as a matter of fact, on one argument Walker has to take a broadly acknowledge cannon of statutory interpretation (that the statute has to be constitutional on its face) and completely override it, with the sole support being dicta in a footnote in a case with different facts (i.e., where the statute did pass muster on its own).
That can’t be the best feeling in the world, eh?
What page you referring to?
Page 28:
What Peterr has at 42.
Little doubt in my mind, now that I think about it, that Walker timed release of this opinion to sandbag Coppolino and the DoJ attorneys with it as they walked into his courtroom today. They did not get a chance to read it thoroughly or think through its implications in depth and they may well screw themselves up as a result.
I (and many other lawyers) have done similar time and again. In the middle of a trial, hit your adversary with a motion supported by a 10 or 12 page brief which you wrote up last night. Judges don’t necessarily like it when it’s a lawyer doing that, but they don’t mind at all when it’s the Judge doing it.
…grinding the finest sand…our justice system…
The state proceedings at issue in each of those cases are prohibited by section 803 (50 USC § 1885b) and are hereby enjoined pursuant to this court’s authority under that statute. Clayton et al v AT&T Communications of the Southwest, Inc, et al, C 07-1187 is DISMISSED with prejudice.
… is the “with prejudice” bad for us?
Means they are done in the trial court and must be appealed.
Some random, rambling observations.
One of the problems I’ve always tried to point out on the FISA cases (as opposed to bivens-esque direct constitutional claims) is that there isn’t really much of a reason why Congress can’t change the statute and take away remedies to a plaintiff under FISA. As a matter of fact – petitioners and Walker did a pretty damn good job making it this uncertain (with some assists by members of Congress who were trying to pretty up language to make it seem less egregious to constituents)
What FISA did in its civil penalties provisions was to take something really difficult, like proving up damages for extra-statutory surveillance activities by the state and its agents acting under color of law – and instead give a much more easy out: If gov surveillance of you was not in compliance with FISA, you don’t have to prove anything else to get damages. So I, for example, wouldn’t have to prove that I lost a client, suffered from nightmares, developed rash, etc from the illegal surveillance that did not, after all, result in a criminal case against me.
So for Congress to take that away isn’t something that is that hard for it to do, and everyone (including plaintiffs lawyers)had to pretty much buy off on that:
Congress does not have this same power to provide immunity to violations of the Constitution, but that wasn’t at issue here apparently (I really haven’t followed the initial pleadings in al lot of these cases bc I really did think that this FISA argument paled next to the Constitional arguments in Digg-Taylor’s review, which got shot down on standing on appeal) While they can’t give immunity in that setting (and Walker doesn’t begin to opine that they can) it has a more difficult standing aspect and a really tough damages aspect and the 6th has already revoked its Keith case heritage.
Some of the Walker cites would (if your client was a real client and not an aamorphous amalgem of political postures) make you worry some about winning. *g* Like the Court’s discussion of Congress needing to provide an alternative forum and Congressional intent to be able to sue the Government “actors” followed a bit later by a “nod to bmaz” reference Gov’s own argument as to why the amendment is just a fact finding delegation that is permissible:
Another random comment that I think I’ve already said differently is that Gov seems to be put, now, in a posture where it has to say that the alternative forum provided, of suing Gov, is illusory bc of state secrets invocations in the other case. That’s not the kind of ping pong that you play in competition.
I don’t disagree with Walker’s due process analysis per se, but I don’t think plaintiffs framed the argument that I think is a more likely winner so he didn’t deal with it. To me, the best due process argument has to do with inequality of application of law and I probably can’t make this very coherent in a ramble, but I think it would go something like this.
FISA provides statutory protections to all US citizens on US soil against certain kinds of Government surveillance without a court order.
FISA also allows for violations of those protections to vest a right of action in individuals against violators – gov and their affiliated actors.
Now Congress has amended FISA to say that not all US citizens on US soil have a right of action anymore. Instead, the Executive branch can by its own fiat, pick and chose which US citizens will have recourse to the statutory recovery and which will not and that will be determined solely by whether the Executive branch certifies that the Executive branch ok’d the targeting of American citizens on American soil to the third parties.
So instead of Congress taking away the statutory recovery for everyone – which I think they could have done – they instead amended the statute to say – if the President didn’t elect to target you for illegal surveillance during this particular time period, you have rights under the statute, but US citizens whom the President elected to target on his own order during that time period will not have recovery rights.
I don’t buy that you can do that – but I also don’t see where the argument was framed in that fashion to Walker.
Thanks to all the Legal Eagle commenters for divining that the plaintiffs’ loss wasn’t really a loss, and that the defendant’s win wasn’t really a win, but I’m still bummed.
Probably because that spineless, feckless coward Jello Jay had no good reason to immunize the telcos, but pure, craven “money is king” politics.
The argument, that even Judge Walker uses, that the primary actors, the government and individual actors in the government, are still on the liability hook mollifies me not at all.
One of the original purposes of FISA was to motivate the telcos to stand firm against the illegal and criminal attempts by the government to warrantlessly wiretap.
I’ve never been persuaded that private corporations were going to be the protector of my liberties and constitutional rights, but I had hoped that given sufficient financial disincentives and penalties, they’d at least look to their own wallets first before undertaking these obvious criminal acts requested by the government.
And Jello Jay threw that right out the fookin’ window!
Institutionalizing criminal conduct by private corporations as a profitable, penalty-free and government-sanctioned method of “doing business”.
I guess robber barons never fall far from the tree.
mollifies me not at all
Me neither.
There is supposed to be two sharp sticks to prevent such telecom collusion with someone (here the PResident, but it could have been someone else) in the Exec branch. Sharp stick 1 was the felonious nature of that collusion – which would subject them to criminal prosecution, and, if the crimes were committed at the highest levels (like Presidential) with participation by an AG (like an AG saying that people will not be investigated or prosecuted if they were Presidential
torturerswiretappers, no matter what law and the Constitution say to the contrary) you would still likely have the possibility of a subsequent administration’s AG acting with responsiblity towards Executive branch crimes. Ok – so now with Obama and HOlder we know that isn’t the case, the Executive branch loves the thought of insulating itself from criminal consequences by agreeing not to prosecute itself – so moving on to the next stick, that was the civil suit and the guarantees of statutory recovery without demonstrating direct damage.And Rockefeller et al said – hey, let’s just change that so it means nothing and so we protect campaign contributions. Let’s face it – no one has ever even give a public answer to the question (that also hasn’t been made to the telecoms publically to my knowledge) of whether or not they were advised that early on, when the Chief FISCT Judge (and later the next Chief FISCt Judge) were briefed on the program they opined that the program was unconstitutional and set up firewalls. Who the hell makes a “good faith” claim with that out there? But the question has been studiously avoided by Congress and the Intel committee in the lead up to the statutory revisions.
That makes me think of one of the quibbles I have with Walker, when he says (in considering a part of the argument made) “This is neither a criminal proceeding nor a trial” It’s not a criminal proceeding, but it is one where civil liability stems from the felonious actions of the perpetrators. It is only NOT a criminal proceeding bc the then AG and President colluded in the crime; it is only NOT a criminal proceeding because Obama and Holder and Democrats agreed that not only are the President and his AG above the law – so are corporate campaign contributors like the telecoms.
To say I’m not mollified really understates my lack of mollification – more mallified than mollified.
Hey, the telcos are the one real winner here; so far anyway (theoretically possible they are brought back in). But why were they never out for themselves and always aligned with the government, from the very start? In spite of all the things you say and others? I don’t know, but in legal settings, the only other time I have ever seen that out of them was when they had indemnification agreements with the government. i.e the government was always on the hook for them as far as liability, so they didn’t care.
Based on the latest news regarding Al Haramain from my # 48, I hope nobody tries to convince me that Judge Walker is playing 11 dimensional chess “I’ve got the government right where I want them”.
Rather, it seems he’s having second thoughts.
I mean, wtf is this stuff about “Sept. 1 for further arguments”?
September?
September???
That’s 4 fookin’ months from now! What’s gonna change in 4 fookin’ months?
Something smells and it ain’t the cologne he’s wearing!
I think the telecoms did what they did because BushCo were threatening to take away major business contracts with the government and because it was in the shadow of 9/11, so they were being good citizens. What CEO today can afford to lose major business to uphold principle. And, what citizen wouldn’t have done anything the government asked to catch the bad guys?
Technically, I think telecoms were in an untenable position anyway. Under FISA the gov’t has something like 14 days to show a warrant, so on day one the gov’t doesn’t have to have the warrant. How can a telecom KNOW the Bushies don’t ever intend to get the warrant? They have to assume everything is copacetic and the warrant will appear later. But, then when it doesn’t appear and the Bushies use an AG letter or some other crap, then the jig is up. That’s why they aren’t so much at fault as they would have been if the warrant had been required up front, but wasn’t there and they still allowed the wiretapping.
I just don’t see how it makes sense to make the telecoms out to be bad guys in those circumstances. But, when the warrant was due and BushCo went ahead without it, then somebody was breakin’ the law.
Yes, for instance the telcos were breaking the law.
I can’t buy that supposition. Simply put, the government had no other means to warrantlessly wiretap than through these telcos.
The telcos were going to lose business to other entities? To whom?
In spite of the demonopolization of the telcom industry (circa 1983 breakup of AT&T), the actual facts are that these telcos still hold and maintain a monopoly on our communications networks.
Believe it from one who worked in, and with, these very same telcos for over a dozen years.
MarkH, I generally like your commentary, but on this one, you’ve missed it entirely.
It was against the fookin’ law for the telcos to assist the government in warrantlessly wiretapping! It was a fookin’ criminal act as defined explicitly in FISA!
The telcos knew it, the government knew it, and now, nobody is going to fookin’ jail!
Make no mistake the telcos are just as fookin’ criminal as their government co-conspirators!
This isn’t even a close one!
And related Breaking News via the AP:
Let me see if I have this straight. When the FISA amendments were being debated, there was discussion of substituting the government for the telcos as defendants. That idea was rejected, but so was the alternate idea of also immunizing the government. The result of that, from Walker’s ruling, is that cases against the government are still free to proceed and the telcos are off free because DOJ was willing to certify that the President had authorized the program. [In fact, when I was checking to make sure my recollection on this was accurate, I found that Specter and Whitehouse reintroduced legislation this year to substitute the government as defendant.]
Now think about the torture cases. Obama has stated flatly that he and Holder will not prosecute government personnel who tortured if they acted under a DOJ opinion that claimed the action was legal. The Mohamed v. Jeppesen Dataplan case is still active.
It seems to me that if Congress were consistent (I know, but this is just a hypothetical), they would also move to immunize Jeppesen and other contractors while allowing actions to proceed against the government. The way things stand now, actions on the two fronts are entirely orthogonal, and yet in both cases we have blatantly unconstitutional actions by contractors enabled by government wrong-doing. I favor civil and criminal prosecution of both the private parties and government figures, but also feel that if only one set is to be punished, it should be the government figures at the center of the crimes. That is our best bet for preventing these practices in the future.
Did the telco’s get paid by the government for their services?
Yes.
The ones who went along got paid and the one(s) who didn’t were punished by losing gov contracts. This was not a free choice for telecoms to make.
Totally OT, but if you’re gonna be bummed, might as well go all the way:
I always thought “the Law was for Justice”, but apparently I’ve got that wrong.
It seems according to our government, “the Law is for Just Us!”
My momma always said, “Orthogonal is as orthogonal does bubsy wubsy!” LOL