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Wed

19

Dec

2007

Open Minds
Wednesday, 19 December 2007 13:40
by Jayne Lyn Stahl

There was an email in my inbox, this morning, from Senator Dianne Feinstein thanking me for writing to her about administration efforts at legislation that would give what both the Senator and the President call "liability relief" for those telecoms, after 9/11, that cooperated with the National Security Agency's request, and participated in clandestine surveillance of their customers' telephone conversations, without a warrant, in violation of FISA, as well as privacy laws. The way this government has attempted to rewrite not merely the Constitution, history, but the English language is a continuous source of amazement to me. Liability relief, indeed!

Why didn't anyone think of liability relief for Richard Nixon when he authorized the break-in of Democratic headquarters at Watergate? From now on, when they take the oath of office, we ought to require that all future presidents have liability insurance in place so that they don't waste taxpayer money, tie up both houses of Congress with interminable investigations, and may be held harmless from charges of war crimes, destruction of White House emails in violation of the Presidential Records Act, as well as any other misdeeds, and misconduct.

Indeed, why not require future presidents to carry immunity from prosecution insurance the way Governor Schwarzenneger is working to require all Californians to carry health insurance. Moreover, why restrict immunity from criminal prosecution to those who carry out the surveillance, and not those who give the commands to surveil?

In her letter, Senator Feinstein also asserts that it was the Executive branch who demanded that electronic communication service providers turn over records, and that requests for N.S.A. assistance were generated by the President himself. She insists that these demands for information are legal. What's more, the Senator says that she herself voted for the FISA bill, in October, which included the provision to grant immunity to companies that cooperate with governmental requests for information.

Yesterday, the Senate Intelligence Committee, upon which Ms. Feinstein serves, not surprisingly, voted to approve the controversial FISA overhaul measure with the retroactive immunity clause in there, by an impressive margin of 76-10. (Reuters) We'd all like to know the names of all those on the committee, besides Feinstein, who voted in favor of this legislation. esp. those who are up for reelection.

The good news is that, thanks to the efforts of Senator Reid, a final vote by the full Senate has been delayed until after the congressional recess. Unlike the Intelligence Committee, both the House and the Senate Judiciary Committee looked less favorably on legislation that would grant so-called liability relief to those who violate ordinary citizens' privacy rights. In fact, the House bill doesn't mention immunity at all.

But, what many in Congress neglect to consider in their discussion of FISA reform, and immunity to telecoms who cooperate with NSA, is is that this legislation is designed not merely to ward off prosecution from past surveillance, but to open the door to "wider spying" in future, as well as "a wide range of secret surveillance operations in fighting terrorism and crime." (WaPo) Yes, America, while the Senate debates whether Big Brother has the right to eavesdrop on your cell phone conversations, Big Brother continues to do so, and with the collusion of an alarming number of your elected representatives. And, from the looks of things, we can count on yet another preemptive strike against privacy by N.S.A.

Notably, much of the campaign to monitor our personal communications in the name of a so-called war on terror has been kept conspicuously private by an administration which has enhanced the ability to classify information, as well as deter declassification. Clearly, too, the destruction of evidentiary videotapes is another means by which the Executive branch controls the flow of information, especially when there is concern that there might be leakage to the press.

As first reported in this morning's Washington Post, the National Security Agency tried unsuccessfully to gain access to domestic calls through a Denver telecom, Qwest, access that would have allowed them "neighborhood-by-neighborhood surveillance of phone traffic without a court order" Qwest refused to cooperate with the N.S.A. request. And, if many in Congress get their way, when the temporary FISA reform bill, scheduled to sunset on February 1st, is finalized, it will contain a provision that prohibits legal action against communication companies who intercept your emails, phone conversations if they claim that they were directed to do so by the N.S.A., or the Executive branch.

Both the House and Senate must reach agreement on whether or not to include immunity in the new FISA reform bill before it can pass. We who pay their salaries, as well as those presidential candidates, of both parties, who hunger for our votes, must make our position known on violating privacy laws, and obtaining our personal information without a warrant. President Bush has already made his position known; he says that he will veto any measure that doesn't provide for immunity to telecoms.

As important as privacy is, there is an even larger question. How can any legislative branch make laws then grant immunity from breaking laws on the grounds of national security? After all, what is "national security" if not law enforcement? Clearly, the concept of "liability relief" means writing an escape clause written into the law. But, who gets to escape prosecution — the telecommunication companies who act as hit men, or the Executive branch who gives the command?

Another representative, from New York, Senator Charles Schumer, suggests that those who oppose retroactive immunity "really don't want to punish the phone companies as much as hold the government accountable;" We agree. He's also right when he says that "it's very hard to do that." (WaPo) It may be easier to climb Mt. Everest in an ice storm than to hold the Bush White House accountable for anything.

In her missive, Senator Feinstein insists that she is "keeping an open mind to whether some other legislative approach besides immunity would be best." There is much to be said for keeping an open mind, but there are times when an "open mind" simply isn't enough. To legislate immunity, past, present, or future, for those who obediently acquiesce to the will of those who obey the rule of law selectively is nothing less than complicity in high crimes and misdemeanors.

A more workable "legislative approach," and one that would get an enthusiastic thumbs-up from the framers, might be for the House to begin reviewing articles of impeachment when they reconvene after the holidays. It's never too late for love, or impeachment. Failing this, then any FISA reform that Congress passes which grants "liability relief" to private companies must also agree to prosecute the Executive branch, or governmental agency, that issues the orders instead.
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Woodyeofalb said:

0
what hath G*d*mned b*sh wrought?
The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

Yes, that’s right. The President, according to the George W. Bush OLC, has Article II power to determine what the scope of his Article II powers are.

Never mind a little decision called Marbury v. Madison, written by Chief Justice John Marshall in 1803, establishing the proposition that it is “emphatically the province and duty of the judicial department to say what the law is.” Does this administration agree that it is emphatically the province and the duty of the judicial department to say what the President’s authority is under Article II? No, it is the President, according to this OLC, who decides the legal limits of his own Article II power.
http://whitehouse.senate.gov/record.cfm?id=288537&
 
December 19, 2007
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