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FISA part 3

Ok. So I read the rest of that article. This is interesting...

The bill does not grant the telecommunication companies direct immunity, but it does contain a provision that allows a federal judge to dismiss the suits if the companies can present a letter from the government stating that the program was legal.


So, in court, the telecom needs to present this letter, from the government—from some individual in the government—that states that the program is legal. Letters each company had at the time they granted the wiretaps.

I think I might be able to live with that. It shifts the legal burden away from the corporation, onto the government agent that has assured the telecom that they're obeying the law. But it does not eliminate culpability altogether; someone's ass is still on the line.

It's not unreasonable to expect a company to believe the government when it tells them an action is legal, is it? It's certainly unfair to require them to retain lawyers to be ready to answer that question at a moment's notice at all times...

Hmm. My rage is subsiding. This may be okay.

Comments

( 20 comments — Leave a comment )
gorgo
Jul. 11th, 2008 10:20 pm (UTC)
Read that way, I'm actually pretty happy with the bill. I think it's reasonable for a company to take the government at its word if they have some sort of official document stating that something is legal, if for no other reason than making people/companies liable for checking such things would lead to a situation where people would try to keep the police out of their homes while they checked the validity of search warrants, etc. Also, if the telcos have to produce the documents saying that the action was legal, then there's the start to a paper trail leading to the person who made the decision, which is the real thing that I'd like to see come out of all this.
nakor
Jul. 11th, 2008 10:51 pm (UTC)
Can you describe the process you imagine being used to create such a letter?
crs
Jul. 12th, 2008 04:51 am (UTC)
1. Secret FISA court issues one of those spooky warrants we hate but they have already been giving out.
2. Court clerk types up n copies of an order stating that such a wiretap is legal under FISA.
3. Judge or agent or someone signs it. There's a reference number on there or something that leads back to whatever "court" proceedings there were.

Or, alternately,

1. Agent writes one up, signs it himself.

This will lead to Agent potentially getting in trouble later. Unless he has signed orders from superior or something... "You don't have one of these, Jack, do you?" (from the movie version of Clear and Present Danger)

I don't know. It's fuzzy, but I can imagine some process around the whole thing.
nakor
Jul. 12th, 2008 01:14 pm (UTC)
That first is called a warrant. At best, the new process will involve a sign-off by the Attorney General or one of his deputies. That means a much lower standard of proof, only one branch involved, and less commitment to (due) process.
mycroft
Jul. 11th, 2008 11:15 pm (UTC)
No, this is just a lousy way of creating a scapegoat that can be easily axed. It will make it impossible to pursue any meaningful action.
vfish
Jul. 12th, 2008 02:30 am (UTC)
Let me pose a hypothetical scenario.

Suppose that George W. Bush catches the fiscal conservatism bug and decides that a great way to save money would be to house American soldiers that aren't stationed overseas in the homes of ordinary Americans. Bush issues an executive order -- let's call it the House Our Soldiers Executive Decree -- and "asks" all mortgage lenders to comply. Someone at the Department of Justice sends out a letter proclaiming that the President's idea is both Constitutional and brilliant.(*) A week later, several mortgage lenders announce that they will foreclose on all properties, even those on which the owner has never been late with a single payment, in which the owner refuses to quarter U.S. soldiers.

Question: Would you support later granting retroactive immunity to those mortgage companies?

(*)It won't be until records are declassified 50 years later that the public finds out that the original letters were written in crayon with letterhead that reads "Departmant of Justiss", but if the letters are requested by a court, the actual Department of Justice is prepared to forward on a properly typeset letter that preserves the intent of the original.
crs
Jul. 12th, 2008 04:57 am (UTC)
Depends - is the immunity dependent on the mortgage companies ratting out the government stooge who gave the order in the first place?
tirianmal
Jul. 12th, 2008 03:39 am (UTC)
what vfish said.

If the only requirement is that someone in the government says it is legal, what happens the next time they do something patently illegal. Like say, wiretapping US citizens who are NOT phoning someone outside the US? Or reading your email? Or putting a bug in your house?
firstfrost
Jul. 12th, 2008 04:31 am (UTC)
But there are circumstances under which it *is* legal for someone to bug my house, so dismissing it as "patently illegal" is over-broad. Some circumstances, as I understand it, involve getting a warrant to do so: that is, having a part of the government officially tell them that it's okay.

The IRS explicitly says "When you call and ask us questions about your taxes, anything we say may not be true. If you rely on it, and we were wrong, sucks to be you." And people *hate* that. We want the stuff the government tells us to be true, and, more than that, we don't want it to be our fault when we believe them.

Now, if I ask the guy at the Registry of Motor Vehicles for advice on my taxes, and he's wrong, that was stupid of me. Not all pieces of the government are equally plausibly authoritative on all subjects. But I'm not sure I'm capable of discerning the law *better* than what looks like the appropriate part of the government.
firstfrost
Jul. 12th, 2008 05:39 am (UTC)
(That said, I don't really like retroactive immunity in this case. Everyone else, in theory, has to deal with the law as it is, not the law as they maybe hoped it was.)
tirianmal
Jul. 12th, 2008 01:53 pm (UTC)
What they did without a warrant or oversight is patently illegal. There are circumstances under which they could have done what they did, but they chose to ignore those procedures. So, what if they ignore other procedures, like say due process, or a trial by a jury of my peers? If the Government says it is legal? What then? That's what pisses me off.

Now, if I ask the guy at the Registry of Motor Vehicles for advice on my taxes, and he's wrong, that was stupid of me.

The almost equivalent part here was that the telecoms relied on legal advice of the party that had the most to gain by "lying" to them about whether it was legal and therefore probably should have been at the very least told "hold on, while we get a court to tell us if this is legal." There's even a secret court they could have gone to if they wanted. Instead, they accepted that the govt lawyers were telling them the truth ... and they obviously weren't so that was stupid of them. I want them to face possible consequences for this. Possible because it is always possible that a jury trial under suit would find them to be not guilty.
(Anonymous)
Jul. 12th, 2008 03:42 am (UTC)
Guy in a suit walks up to you, tells you to shoot your neighbor in the head, and hands you a letter on DoJ stationery telling you it is legal for you to shoot your neighbor in the head....

"I was just following orders" is not exculpatory in a court martial; is it really acceptable in the civilian courts?
yakshaver
Jul. 12th, 2008 03:43 am (UTC)
Oops; that was me.
crs
Jul. 12th, 2008 04:29 am (UTC)
This is a pretty closely defined situation, I think. FISA doesn't say that you can't be prosecuted for murder in that situation, I don't think.
gorgo
Jul. 12th, 2008 05:52 am (UTC)
I can see the point of the scenarios about government officials telling people it's legal to do things that are patently illegal, but the scenario also gets silly if you push it in the other direction. Suppose I work for a company that has a privacy policy that states that they won't give out customer information without a warrant. Police officer (or, at least someone in a damn good imitation of an officer's uniform) shows up at my office with a document that states that it's a warrant, has a signature claiming to be from a judge.

Should it be my fault if I give the office the information he claims to have a warrant for? If so, how much checking am I supposed to do? And, if I do too much checking, do I become liable for obstruction of justice?
firstfrost
Jul. 12th, 2008 01:38 pm (UTC)
Tangentially...
Demands for information are subpoenas, rather than warrants.

I was very tangentially involved in this case - note the bit at the bottom, which involves a subpoena not signed by a judge, and was rejected.

I suspect that if a subpoena shows up at your company's office, the first step is "show it to your company's lawyers". Darned if I know how they actually check if it's forged, though. :)
tirianmal
Jul. 12th, 2008 02:02 pm (UTC)
Re: Tangentially...
Aren't subpeonas challengable? ie - if someone shows up, with a subpeona, you don't have to comply immediately, you can tell them your lawyers may want to challenge this and "hold the heck up." You can then take it to court. If it isn't a valid subpeona, you'd find out then. Maybe.

Warrants ... I have no idea. God that's scary.
gorgo
Jul. 12th, 2008 05:54 pm (UTC)
Re: Tangentially...
"I need to call the lawyers" is certainly what I'd say if I was ever involved in the scenario I cited, but it certainly gets complicated if/when the situation starts involving stopping the police from doing something that they feel they have authority to do.
tirianmal
Jul. 12th, 2008 01:59 pm (UTC)
How much checking are you -supposed- to do? None? Legally? I have no idea? Morally? I leave that up to you to decide how much of my info you want to give up without at least checking the badges and warrants and/or subpeonas for their validity.

How much CPR am I supposed to give you if you fall over unconscious with your heart stopped? None? Legally? Depends on where I am. Morally? I leave that up to you to decide how much CPR you want me to give you.

The point is, if we all just decide that it doesn't matter, then you can go ahead and do as little as you want when it doesn't matter to you, but if the reverse were true, you might care a whole hellalot what I do.

In other words "And when they came for me, there was no one left to speak up for me." Better start speaking up.
rshah21
Jul. 12th, 2008 11:53 pm (UTC)
The (due) process part of collecting evidence does not stop at the collection of evidence
Just remember that once you have the evidence, it doesn't mean you can act on it. The court system has thrown out numerous domestic wiretaps because they bypassed the window in which they could work without court approval.

I'm personally against the "government is bad and stupid" line of thought here. (For obvious reasons, since I work alongside a lot of people who are on the front lines of this debate, and have heard stories that would make even the most jaded and cynical proud). Abuse of power and over-reaching does happen, but is clamped down on extremely tightly (it's amazing how many libertarians are in the ranks).

The court system works (even in secret), especially when it's a US Citizen involved.

( 20 comments — Leave a comment )