I apologize for bothering with another thread on FISA.
Over the last 48 hours I have encountered several outstanding citizens who have criticized something I have said on the FISA issue. These criticisms have included the fact that I am a "nazi","quisling","coward" and "have no individual opinion". Of course that is a distinction that many others have also received on the subject from self appointed experts who have a much higher opinion of their grasp of constitutional issues than the rest of us.
I have not been able to post my response to these fine citizens despite an effort to do so as the threads or subthreads were no longer accessible.
There have been many well argued responses to the subject that are written by more intelligent resources that have better legal background and so my individual response is unlikely to add much to the overall quality of the debate. I would be surprised if anyone feels that they have gained much insight by the following.
However, I would simply like to be able to respond to the query whether or not I had an individual opinion on the matter (which is a response I think to this thread in which an outstanding authority of the subject who was quoted without comment on the matter
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x6473419).
1) Given Senator Obama's intelligence, expertise and what he has revealed to us so far to date about his integrity and his vast knowledge of the constitution I think that we should be willing to give him the benefit of the doubt when it comes to an issue that is a) not as black and white as has been presented by some b) could have a dramatic impact on the general election.
2) I was not happy that warrants are not needed for domestic to foreign survelliance although there was a poster today who appeared to indicate that this was not as big a change as I had previously thought as all communication across our nations border has always operated under the consideration that it was not covered by the 4th ammendment.
3) I was not aware until today that evidence for a warrant has been narrowed so that it cannot be based simply on statements that the person might have made that are protected by the first ammendment.
‘(2) PROBABLE CAUSE- In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
4) Although the ACLU makes light of it a number of other significant folks like Halperin and Obama (and many of the right leaning critics of the compromise) that the executive branch's ability to simply initiate an action that has not been previously covered by legislation has been taken away and now must have approval by the FISA courts. It also requires congressional oversight. So in the future the ability simply to define something as "in the interests of national security" and put the power of the government behind it will no longer be solely within the power of the executive branch.
5) As somebody who has lived overseas for several decades I like the fact that the 4th ammendment now covers overseas Americans but don't see that as major factor..
But in all honesty numbers 2-5 are not my independent opinions but gained from others:
In addition to Number 1 above I can give you two more completely indpendent opinions on the subject
a) I never thought that suing the shareholders of companies and making them pay when it was government officials who were 95% responsible and individual telecom officers and their attorneys who were 5% responsible was particularly fair. Here is a more detailed explanation
Party A breaks (atleast in spirit) the law and is 95% responsible (The government)
Party B does not resist the government requests for information with a formal written declaration of a) legality b) national security and so does not get the automatic ammunity provided for (they still have a good chance of defending the suit based on standard government sub contractor immunity). (The telecoms are 5% responsible as the primary culprit is the government agency that asked for private sector cooperation)
Party C sues on behalf of the public ('non profit' civil rights organizations)
Party D the public
Party E share holders.
So without the immunity C sues B (when they should really be suing A). If they are successful there will be hundreds of millions of dollars with a large share of that staying with C (reimbursing their inhouse legal departments) and a token amount going to the injured party D.
This would be paid for not by A(government officers) or B (meaning the executives of the telecoms) but by E the shareholders which consist of individuals and pension trusts like unions and workers who really are just another subset of D.
So I never thought that suing the telecoms was the great panacea that many people here did as it will end (if successful) with one subset of the public paying through the litigation the general public so that everyone ends up wtih $ 4.23 or some token amount.
I would have preferred that the telecoms be fined and that the individual executives in the telecom companies being fined directly out of their pockets, whether they were the inhouse counsel or the hired attorneys or the CEO - whoever failed to press the government for the certificates that they should have, and that companies like Qwest did.
And yes I do think that all of the non profits who filed law suits have ulterior motives and continued to blow the actual suit way out of proportion as they had their eyes on their share of the hundreds of millions they would have won (had they actually won in court).
There is an argument to be made that the civil litigation would have helped the discovery process.
Senator Obama's remarks today and other experts seem to indicate that the appointment of the Inspector General will take care of what was lost by discovery. Others disagree.
In any case, taking out all of the other FISA questions out and, narrowly centering simply on the issue of suing the telecoms who failed to press the government for certification - I never thought it was a big issue and would have preferred that the 'tort' question would have been directed at a) the government officials who bore overwhelming responsibility for it b) the telecom officials who were directly involved in it - rather than punishing unknowing shareholders who had no participation in it at all.
b) I also have a very close relative who is a judge in a rural area and I have asked him from time to time about different aspects of his job. One of the things that I realize from his descriptions is that however good the system looks like on paper it doesn't really make a difference if 1) the prosecutors are not both honest and vigorously committed to the spirit of the constitution and not the letter and 2) the judge handling the warrants is not independently minded, committed to the constitution and not lazy.
So my independent opinion is that on February 19, 1942 before there was FISA and the current legislation FDR signed Executive Order 9066 that resulted in the internment of 110,000 Americans of Japanese descent who experience real concrete loss of liberty.
So in the end the constitution is not held up by the passage of this law or that law nearly as much as by the appointments that are made by the president for the prosecutors who are applying for the warrants and the judges who will decide on those warrants. This far more than the FISA law will determine what effect the constitution will have on real life people on real life issues.
To summarize:
I have picked up some from folks that support the compromise but here are my 3 completely independent opinions on the subject:
1) I trust Senator Obama on the subject and give him benefit on the doubt until such a time that overwhelming evidence to the contrary has been provided by independent and non partisan authority.
2) I never thought that making the telecom companies write out checks for tort offenses by individuals in the government or company executives was fair, that they should be held liable individually.
3) That much more that this specific legislation it is much more important to elect the guy that appoints the prosecutors and the judges and in this one issue I think Senator Obama is light years away from others who were running for the presidency, Republican or Democrat but is not within the same galaxy when compared with Senator McCain who has no grasp or inclination in this area.
I won't bother asking you for your independent opinion because everything you have provided on the subject to date has been off the top rehash from the ACLU and the other interested parties.