My understanding of FISA bill... tell me where I'm wrong

[scheming daemons]

For the past year, the Bush administration has been acting illegally by wiretapping without FISA oversight (i.e, without a "warrant"). This is anti-constitutional.

The bill today RESTORES that oversight.... in other words.... Bush must get FISA court approval.


That's a good thing. The President can no longer violate the 4th amendment. He needs a "warrant"..... and the FISA court oversight acts as that "warrant".


that's a good thing.



The bill ALSO grants immunity to telecom companies for their complicity in violating the 4th amendment during the past year from CIVIL suits..... but not from criminal proceedings against them. Bottom line, they can still be charged as criminals... but they can't be sued and forced to pay financially.

The first part is a good thing. The second part is a bad thing.




So...... from my understanding the bill did the following.... tell me where I'm wrong:


1. Restored the FISA court oversight so that the administration can no longer snoop on citizens without a "warrant" (i.e. court approval). Good thing.

2. Granted CIVIL CASE immunity to telecom companies for violations of the 4th amendment during the past year when the administration was operating without FISA court oversight. bad thing

3. Did NOT grant CRIMINAL CASE immunity to telecom companies for violations of the 4th amendment during the past year when the administration was operating without FISA court oversight. good thing.



From my perspective.... the 4th amendment protections of "no search without warrant" have been restored, after being absent for the past year, because the administration MUST get FISA court approval before snooping. In exchange for his signature on the bill, Bush got protection for the telecoms from losing millions in civil suits.

That's called a compromise. Administration can no longer violate the 4th amendment, and telecoms can avoid being put out of business by paying millions through civil lawsuits..... thus probably protecting hundreds of thousands of American jobs.



Somehow.... this failure to grant retroactive immunity has been twisted into meaning that we're "gutting the 4th amendment" by the shrieking hoards on DU and other Democratic blogs.

When, in fact, the protections of the 4th amendment were largely RESTORED today.... albeit with a distasteful amnesty for telecoms for past behavior.



And this means we're just like the USSR now (according to one OP) or that "Democracy is Dead" (according to another)?????


I don't get it.

[Max_powers94]

1. There are trolls every where...remember that

[JeffR]

2. I'm afraid you're wrong and you'd better vote McCain to make amends

:silly:

[underpants]

3. If this is correct then I have a much better understanding of why O voted yes

but, to be honest, he still should have voted no

"mainstream" "middle America" or not

[writes3000]

4. I'm disgusted by the TROLLISH behavior I'm seeing here. Unbelievable. n/t

[Growler]

6. Agreed. n/t

[villager]

8. I agree. These "apologize for caving to Bush" trolls are unbelievable...

n/t

[Eric J in MN]

5. Federal officials were already required to get FISA court approval...

...for intelligence wiretapping under the original 1978 bill.

Repeating that FISA is exclusive doesn't improve the law.

Bush broke the law under the theory that the Constitution gives him the inherent power to.

[scheming daemons]

7. And today's bill means Bush can no longer do so.... HOW is that "gutting" the 4th amendment?

[Eric J in MN]

11. Phone companies have no motive to say No to any official...

...who asks for information without a warrant now.

They know that they will never be held accountable for violating the privacy of their customers.

Any president like Bush who thinks that the Constitution gives him wiretapping powers regardless of a statute will just ignore any limitations in a statute.

[scheming daemons]

16. I thought the bill only had no RETROACTIVE immunity.... not immunity for FUTURE acts....

am I wrong?

[MrCoffee]

18. There's no need for future immunity...the bill immunizes the telecoms in the future

As long as they get a note from the AG saying it's ok, they're clear. The note doesn't have to say that the wiretap was legal, they just have to get the note.

It's carte blanche.

[woolldog]

22. Wrong. It immunizes them for acts committed withint a certain time frame

that has now expired. I believe it's 2001-2007.

edit: spelling

[scheming daemons]

23. EXACTLY.

The law is TIGHTENED for the future.


IN exchange... they've been granted amnesty for the past 6 years.


Tough pill to swallow.... but not the "end of Democracy as we know it".

[hfojvt]

33. it sets a precedent for future acts

"We can get away with breaking the law, just like we did last time. Ha ha ha!"

I never wanted to punish the phone companies though. I thought it was about using that threat as leverage to get evidence against the Bush administration, but I don't expect them to be punished either.

[MrCoffee]

27. You are right, I misspoke. Now that the surveillance orders are legal, there's no

need for immunity.

My bad.

[Eric J in MN]

29. The bill stops states from enforcing their privacy laws.

`SEC. 803. PREEMPTION.

`(a) In General- No State shall have authority to--

`(1) conduct an investigation into an electronic communication service provider's alleged assistance to an element of the intelligence community;

`(2) require through regulation or any other means the disclosure of information about an electronic communication service provider's alleged assistance to an element of the intelligence community;

`(3) impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or

`(4) commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.

`(b) Suits by the United States- The United States may bring suit to enforce the provisions of this section.

`(c) Jurisdiction- The district courts of the United States shall have jurisdiction over any civil action brought by the United States to enforce the provisions of this section.

`(d) Application- This section shall apply to any investigation, action, or proceeding that is pending on or commenced after the date of the enactment of the FISA Amendments Act of 2008.

[woolldog]

42. There's nothing unusual about federal preemption in this area.

[Eric J in MN]

44. We've had FISA since 1978 without that. NT

NT

[woolldog]

48. What would be the point in Congress giving the telco's immunity

but leaving them open to state lawsuits? Obviously they don't want the telcos punished for their co-operation with the federal government.

Even without the express preemption provision, it's very likely that state lawsuits on this issue (after this FISA amendment passed) would've been found to be implicitly preempted by FISA.

[Eric J in MN]

49. Telling states to stay out of phone companies and ISPs...

...violating our privacy could have been only for the dates of the retroactive immunity, but it's ongoing.

[Larkspur]

9. Glen Greewald smacks Obama and the Dem Congressional leaders over this awful bill

Today’s Coverup of Surveillance Crimes and Barack Obama

I definitely will NOT donate $ or time to Obama's campaign. Obama's support for eviscerating our 4th Amendment rights means he is on the path towards corruption.

[MrCoffee]

10. Unfortunately, you're wrong on #1

The bill did not restore FISA court authority, in fact, it restricts the FISA court's authority by not requiring the government to give specific information on who is being targeted. Under the new law, the government only has to give the FISA court general information about procedures, not specific information about who/what is targeted.

In the event that the FISA court denies a general application for a wiretap, the government can still listen in for the duration of the appeal process.

Congressional oversight is severely restricted as well. The Inspectors General reports will only be provided to the Intelligence and Judiciary committees, not the Congress generally.

[scheming daemons]

13. Isn't that better than NO FISA oversight at all? (the situation of the past year)

[MrCoffee]

15. No, it's not...

All this bill does is legalize the illegal actions of the White House.

That's not better, not by a long shot.

[scheming daemons]

17. Doesn't it force the administration to jump through a hoop, however small, that they've

been ignoring the past year?

[MrCoffee]

21. But the hoop is meaningless...

There's no probable cause, no specific warrant issued, no Constitutional protection at all.

What's the purpose of a rubber-stamp "hoop"? They have to fill out a meaningless piece of paper. Whooptie-doo.

[On the Road]

32. The Government, However,

cannot target US citizens, only noncitizens who are overseas. Any calls that the government listens in on have to be originated by the other party from overseas. That is a limited scope for abuse. The effect of applying to the FISC has been largely to prevent applications for nakedly partisan or illegal wiretaps. That deterrent continues.

It is, of course, possible for the administration to break the law, but as we've seen, that has not an obstacle to this administration. I don't see the possibility of lawbreaking as a problem with the law itself.

[madura]

12. thank you so much for clarifying!

I'm pretty sure you are spot on in your summary - I've avoided thinking about this because it was so polarizing and so much lieing and misrepresentations were floating about.

if this is true, WTF is wrong with all the belly achers here?

it's a compromise - as good a one that could be achieved in these kind of quagmires I would think.

[scheming daemons]

14. the bellyaching is a) because evil telecoms are getting away scot free for past behavior and b)

some people don't understand the issue.

[madura]

35. scot free re: civil suits, not CRIMINAL suits against them, that is how i understand it. is this tru

still would like to know more about this part of it tho. if you can help, please.

so Mr. Smith, who has discovered his telcom has spied on him for a year, has no recourse to take them to civil court - but on the behalf of the smiths the justice department COULD go after the telcoms for this?

[On the Road]

50. There are Some Genuine Criticisms

If the bill really did allow unlimited spying on Americans, I would agree with the outrage. It pretty clearly does not.

[DailyGrind51]

19. The Kool-Ade tastes that good , does it?

[scheming daemons]

24. I'm willing to be proven wrong... tell me what I got wrong, troll.....

[Jack Bone]

20. I believe in Sen. Feingold's judgement...

I heard him say this morning, not a direct quote..but the jest is the same, that when we finally learn what the Domestic Wiretapping entails, many Senators will regret their vote today.

The cold hard fact is that most of them knew not what they voted on.

[madwivoter]

30. "The cold hard fact is that most of them knew not what they voted on"

If anyone actually knew how often they actually vote on a bill they haven't read (or don't understand, or aren't sure about, or had an assistant read it and regurgitate it back to them), there would probably be a collective :puke:

[Jack Bone]

36. yeah, I'm aware of that..but in this instance...

it's out of "Security", not of apathy.

[On the Road]

25. On Your Item #2

2. Granted CIVIL CASE immunity to telecom companies for violations of the 4th amendment during the past year when the administration was operating without FISA court oversight. bad thing

The bill does not grant civil immunity for actions that were illegal. The legality is ruled on by a court.

[midnight]

26. You might want to re-think no. one.

As a practical matter, that means that regardless of how much information the court is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs are permitted to play, the court will essentially be required to grant immunity under this bill.

Now, proponents will argue that the plaintiffs in the lawsuits against the companies can participate in briefing to the court. This is true, but they are not allowed access to any classified information. Talk about fighting with both hands tied behind your back. Mr. President, the administration has restricted information about this illegal wiretapping program so much that roughly 70 members of this chamber don’t even have access to the basic facts about what happened. So let’s not pretend that the plaintiffs will be able to participate in any meaningful way in these proceedings -- in which Congress has made sure that their claims will be dismissed. http://www.thedailypage.com/forum/viewtopic.php?t=42604

[ChairmanAgnostic]

28. sorry, but wrong on a basic fact.

the domestic surveillance, without warrants, started right after Bush was sworn in, MONTHS BEFORE 9/11

that means they broke the law long before any threat of terror. And it means that FISA expansion will do just as well at preventing 9/11 as their lawbreaking did prior to 9/11, ie NOT AT ALL.

[scheming daemons]

31. They won't be in office in 6 months..... and we can fix this

[vaberella]

34. Your 100% RIGHT!!! Most people didn't read the bill... This is why I supported Obama!!

MSM is loving this and so many of the other people like Hillary supporters who haven't gotten over the loss are going to use against us.

I'm tired of the tirades and the bloody rabid dogs going on about something they obviously didn't bother to understand.

[grantcart]

37. There are a couple of more things

Good things

1) Congress now has authority to make policy on FISA they will have an ongoing oversight responsibility.

2) Americans overseas now are covered by the 4th ammendment


Bad thing

3) Communications that either originates or concludes with a foreign source no longer needs a warrant. I frankly don't see the value with this since warrants have a 7 day period where they can apply retroactively.



But an even more important thing is that the person who becomes President appoints the prosecutors and nominates the judges who hand the FISA warrants and courts.

Appointing non political prosecutors who are truthful and judges who are not simple rubber stamps are a far more important part of the system than having something that is 'perfect' on paper.

[Mojorabbit]

45. We will never learn about this

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=389&topic_id=3580083#3580144

[hedgehog]

38. So someone left the barn door open and let some horses out;

and the choice is

A. Close the door to keep the rest of the horses in

or

B. Leave the door open while we discuss how to punish those who left the door open.


A makes sense to me.

[TexasObserver]

39. You are correct. And further, congress can't alter the constitution.

If something is unconstitutional, the congress cannot change that by passing a law. Nothing the congress did today was unconstitutional. They acted within their power. It doesn't change the salient fact that the Bush administration engaged in massive 4th amendment violations, some criminal, whether they involved the telecoms or not.

I would have preferred a NO vote on this bill. I would have preferred no immunity for telecoms.

But it's not a constitutional question. It's a civil law issue, and it's big business getting their way over MONEY and avoiding discovery in civil cases.

[Liberal_Stalwart71]

40. YOU ARE ABSOLUTELY RIGHT!!

And I'm totally baffled by the fact that people don't know these facts!!!!

[vaberella]

41. MSM included. The reason MSM is harping on Clinton over Obama is because they're corporate

machines and are afraid of what Obama might do when in power. Most of those cats have paychecks higher than $250,000.

[Jeff In Milwaukee]

43. Immunity

This is not a new thing. Years ago and in my previous professional life, I worked for a company that made nuclear bombs (parts of them anyway). It was insanely dangerous work and likely to be fraught with liablities for any company foolish enough to accept the contract. What the government did was essentially assume all liability for the work that we did for them -- it was the only way that any company would do the job.

When it turned out that over the years, we had been slowly poisoning the groundwater, the government took full civil and legal responsibility for what we'd done because we were doing everything at their request and with their full knowledge. The federal government has paid hundreds of millions of dollars to settle environmental lawsuits and to pay for other damages that followed in the wake of its nuclear program, but the contractors hired to do the work were held harmless.

I'm not sayingt that it's right or that it's wrong. Just that telecom immunity is nothing new.

[Mojorabbit]

46. The ACLU sums it up thusly

"This bill allows for mass and untargeted surveillance of Americans’ communications. The court review is mere window-dressing – all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole – ‘exigent’ circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all."

"The Hoyer/Bush surveillance deal was clearly written with the telephone companies and internet providers at the table and for their benefit. They wanted immunity, and this bill gives it to them.

"The telecom companies simply have to produce a piece of paper we already know exists, resulting in immediate dismissal. That’s not accountability. Loopholes and judicial theater don’t do our Fourth Amendment rights justice. In the end, this is politics. This bill does nothing to keep Americans safe and is a constitutional farce.
http://www.aclu.org/safefree/general/35726prs20080619.html

[AZ Criminal JD]

47. You are wrong

As your OP says -- you don't get it. The already HAVE criminal immunity. A prosecutor can't charge someone unless they can show an intent to do the crime. It is impossible to show that here because the government asked them to do the taps. If you don't believe that just ask a defense attorney or local prosecutor. The civil immunity is very easy to get. The FISA court just rubber stamps requests from the AG.