FISA and Corporate Misbehavior

I just returned from the Netroots convention in Austin, and needless to say, there is a lot of anger out there about the FISA "compromise." I'll be blunt. I find this anger misplaced and frankly naive.

Opponents of the new law object to the provisions for retroactive immunity for the large telecoms that cooperated with the government. They would have liked the telecoms instead to refuse to comply with government request because they were unlawful. What is the underlying principle of that position? It is that American corporations do not have to comply with government requests if they think they are being asked to do something illegal. Opponents of the FISA compromise seem to think that if this principle were generalized, American corporations might help safeguard civil liberties in future cases. They won't.

Instead, they will rely on this principle to nullify laws that cost them money or go against their interests in other ways. They won't suddenly refuse government requests for information. However, they will begin to refuse orders to comply with labor and environment standards. They will question disclosure obligations. They will, in short, seek to nullify the regulatory apparatus. There will always been a legal argument to do so; to claim that the government has overstepped its bounds and has requested something illegal.

When I make this case, the reply is always the same: "If we strip them of immunity, then we can sue them which will make them behave as responsible citizens."

There are four ways to encourage responsible corporate behavior.

(1) The creation of market incentives for "good" behavior.
(2) Effective government regulation.
(3) The application of moral pressure including threats of boycotts.
(4) The threat of lawsuits.

Despite the popularity of Erin Brockovich and similar stories, the use of lawsuits to encourage responsible corporate behavior is clearly the least effective of the four. The cases are complex and expensive and take forever to litigate. Recent court decisions have increasingly been skeptical about large punitive damages and have often cut them dramatically. The risk of lawsuits is real, but the outcomes are so idiosyncratic that they have, at best, an uncertain effect.

Opponents of the FISA bill, ultimately, are willing to jeopardize the effectiveness of government regulation in order to retain the potential for coercive lawsuits. It is a terrible tradeoff, and our anger at the Bush administration's unlawful acts -- and the complicit behavior of the large telecoms -- ought not drive us into self-defeating behavior.

The way to prevent abuses of our civil liberties is to elect candidates who won't engage in such transgressions.

Comments

[milo9]

Censors are fierce today.

[Michale32086]

Well, it's an old commentary...

Probably doesn't get much attention after so long...

Michale.....

[milo9]

Come on Mike, give us your read on the pre-revision FISA legislation. You won't, because that will expose how toothless the checks and balances are in the post revision FISA; as well as how much more invasive it is.

Considering we practically invented checks and balances, it is safe to say we can do better. And the current FISA, as it is written is unacceptable.

[Michale32086]

}}}}}}}
And the current FISA, as it is written is unacceptable.
}}}}}}}

That's a matter of opinion and I respect yours.

I simply disagree with it, but that's not a big deal..

HR6304 may be unacceptable, it may be unwarranted and it may be flat out bad..

Personally, I don't think it is ANY of these things, but that's an opinion and mine is no more or less valid than yours..

But what HR6304 IS..... is constitutional...

Michale......

[Michale32086]

``(C) Provision of review.--The head of each
element of the intelligence community that conducts an
annual review under subparagraph (A) shall provide such
review to--
``(i) the Foreign Intelligence Surveillance
Court;
``(ii) the Attorney General;
``(iii) the Director of National
Intelligence; and
``(iv) consistent with the Rules of the
House of Representatives, the Standing Rules of
the Senate, and Senate Resolution 400 of the
94th Congress or any successor Senate
resolution--
``(I) the congressional
intelligence committees; and
``(II) the Committees on the
Judiciary of the House of
Representatives and the Senate.

BOOM, baby.. That's your "NO OVERSIGHT" argument being nuked..

I can go on and on, but I think you get the idea..

Ya'all are WRONG about there being no oversight.

Ya'all are WRONG with the applicability of Section 702 and Title VII.

What makes you think you are right on anything else??

Michale...

[CitizenFace]

Again, my argument was "no oversight independent of the Executive branch." Apparently, didn't realize that the intelligence community also serves under the Executive branch.

Boom, baby, indeed.

[Michale32086]

Apparently you didn't realize that "Senate Resolution 400 of the 94th Congress", "the congressional intelligence committees" and "Committees on the Judiciary of the House of Representatives and the Senate." are all part of the Legislative Branch and they also maintain continuous, semi-annual and annual oversight over the operations involving HR6304.

Boom, baby once again....

Why can't you simply admit that you are wrong???

Michale.....

[CitizenFace]

...CONTINUED from previous post

I still couldn't find language that permits or requires anyone outside the Executive branch to conduct oversight that determines whether procedures discussed in Sec. 702 of HR6304 are followed, So I'm interested in seeing what you think you've found.

To be clear, I won't concede if you attempt to refute my point by citing a review of the what procedures the AG or DNI submitted to obtain a warrant or what those procedures were designed to do, as this doesn't provide oversight of whether the procedures were followed. Nor will I concede if you cite a review of a certification from the AG or DNI that procedures were followed, for the same reason.

Again, the oversight must be independent of the Executive branch, so I won't concede if you cite a review conducted by a department, department official, or appointee of the president. In case it's not clear enough, that includes the Attorney General, the Director of National Intelligence, and the Department of Justice, as well as the Defense Department, the CIA, the NSA, or any other intelligence gathering agency. All these are within the Executive branch, so a review by them wouldn't constitute independent oversight even if that review was then submitted to someone outside of the Executive branch.
_________________________

Your BOOM is void, baby.

[Michale32086]

``SEC. 804. REPORTING.

``(a) Semiannual Report.--Not less frequently than once every 6
months, the Attorney General shall, in a manner consistent with
national security, the Rules of the House of Representatives, the
Standing Rules of the Senate, and Senate Resolution 400 of the 94th
Congress or any successor Senate resolution, fully inform the
congressional intelligence committees, the Committee on the Judiciary
of the Senate, and the Committee on the Judiciary of the House of
Representatives concerning the implementation of this title.
``(b) Content.--Each report made under subsection (a) shall
include--
``(1) any certifications made under section 802;
``(2) a description of the judicial review of the
certifications made under section 802; and
``(3) any actions taken to enforce the provisions of
section 803.''.

BOOM, baby...

That's your "NO OVERSIGHT" argument being nuked...

Michale.....

[milo9]

"Fully inform" ? Sounds familiar.

[CitizenFace]

My argument was "no oversight independent of the Executive branch." Apparently, you're not aware of who the Attorney General works for.

Boom, baby, indeed.

[Michale32086]

"Senate Resolution 400 of the 94th Congress or any successor Senate resolution, fully inform the congressional intelligence committees, the Committee on the Judiciary
of the Senate, and the Committee on the Judiciary of the House of Representatives concerning the implementation of this title."

Do you get it yet???

You are wrong...

Michale.....

[CitizenFace]

I'd note that if the review required in subsection (l)(2) as described in (l)(3) were carried out by an independent body--such as relevant Congressional Committee--instead of by agencies working under the Executive branch that simply submit said review to relevant Congressional Committees, then this entire issue of oversight of whether procedures are followed would be moot, and it would be a step in the right direction.

[Michale32086]

}}}}}}}}}}}}
I'd note that if the review required in subsection (l)(2) as described in (l)(3) were carried out by an independent body--such as relevant Congressional Committee--
}}}}}}}}}}}}

You mean like "Senate Resolution 400 of the 94th Congress"???

Or maybe you mean "the congressional intelligence committees"???

Or perhaps you mean "Committees on the Judiciary of the House of Representatives and the Senate."

Oh what the hell.... Why not let them ALL have oversight over HR6304..

Done....

Do you get it yet???

Michale.....

[CitizenFace]

Yah, I get it. You said you'd be able to find a quote from the FISA Amendment that allowed for oversight to be conducted independent of the Executive branch. Yet all you quoted was a portion that requires the Executive branch to provide a review conducted by the Executive branch to Congressional committees.

The portions you quoted require the Executive branch to conduct reviews and submit those reviews to Congress. That quote does not require nor permit Congress to assess whether or not procedures, reviewed by the Executive branch, were followed. It just requires the Executive branch to submit a review to Congress. No oversight independent of the Executive is allowed or required to occur by any portion of either quote you used from the FISA Amendment. That was the assertion you claimed you'd be able to refute.

[Michale32086]

@CitizenFace

OK, just so we are clear...

You want proof that HR6304 provides oversight, separate from the Executive Branch (for example, the Legislative Branch) over the operation of HR6304 above and beyond simply approving procedures. In short, you want proof that HR6304 provides for and/or requires constant oversight and assessments of ongoing operations to insure compliance..

Is that what you are looking for?

Assuming it is, when this proof is provided from the text of HR6304, you will concede the constitutionality of HR6304??

Michale....

[CitizenFace]

Btw, the issue of oversight is just ONE reason why the FISA Amendment is unconstitutional. I've repeated that time and again.

You've yet to address the other violations I've referred to elsewhere.

In any case, as I've said before, my goal was to demonstrate that a reasonable case that the FISA Amendment is unconstitutional can be made and cannot be dismissed out of hand. Given the amount of words you've wasted in defense of this bill, I'd say I've already accomplished that.

[Michale32086]

Not at all..

You simply repeatedly spewed propaganda that has already been refuted time and time again.

Section 702 doesn't apply to US Citizens..

Title VII doesn't apply to US Soil.

So, any "violations" you cite from either of those sections have already been refuted as Constitutional conflicts..

Do you have any citations from OTHER sections?

No, you don't..

Ergo, your Unconstitutional argument has been rendered moot...

}}}}}}}}}}
Given the amount of words you've wasted in defense of this bill, I'd say I've already accomplished that.
}}}}}}}}}}

The converse is applicable as well..

Given the amount of words you have wasted trying to attack HR6304 and Senator Obama and the Democrats who supported, it's easy to see where your agenda lies...

This is simply an academic discussion, as HR6304 IS the law of the land.. The ACLU "challenge" is so pathetic that even *I* could defeat it in court...

Michale.....

[Michale32086]

In other words, like Milo9, you simply will not concede the possibility that you could be wrong...

As with Milo9, you are not speaking from principle..

You are speaking from ego...

Michale.....

[Michale32086]

CONT

}}}}}}}}}}}}}}}}}}}}}}}}
In fact, Calder v. Bull deals with a civil litigation, concerning the contents of a will.

Next.
}}}}}}}}}}}}}}}}}}}}}}

In this regard, you are correct.. Calder v Bull DOES deal with civil litigation concerning a Connecticut court ruling regarding a will..

However, in the Calder v Bull ruling, the SCOTUS rules that EX POST FACTO doesn't apply in civil matters, but rather only in criminal matters.. This ruling completely devastates your previous assertion, as pasted above, that HR6304 violated Article 1, Section 9 of the US Constitution.

Further, as I have shown, at NO TIME did I make the claim that Ex Post Facto applies both in criminal and in civil cases...

Feel free to tuck your tail between your legs and skulk off once again...

Michale.....

[Lemeritus]

"Further, as I have shown, at NO TIME did I make the claim that Ex Post Facto applies both in criminal and in civil cases..."

You have SHOWN NOTHING but the ability to cut and paste only those things that bolster your argument, a habit on which you've been called time and again.

[Michale32086]

Fine... I knew you couldn't accept being proven wrong..

So, feel free to point to where I claimed the ExPostFacto applies to both civil & criminal cases..

I'll be standing by..

Your failure to post such proof will constitute your concession..

Michale......

[Michale32086]

@Lemeritus

What the hell. Things are slow today...

Here is your argument from 03 Jul 08 @ 1149hrs

}}}}}}}}}}}}}}}}}}
May I refer you to Article 1, Section 9 of the Constitution? "No Bill of Attainder or ex post facto Law shall be passed." Excuse my hysteria, but wasn't FISA a law when it was broken and isn't the meaning of "ex post facto" to operate retroactively, as in retroactive immunity? As defined in Calder v. Bull (3 US 386 [1798]), a law may be found to be ex post facto if it: "alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense..."
}}}}}}}}}}}}}}}}}}

As you can plainly see, you are clearly arguing that HR6304 violates the EX POST FACTO provision of Article 1, Section 9 of the Constitution.

My response:

========================
EX POST FACTO only comes into play on criminal matters. Not in civil litigation...

However, be that as it may, that was why initially I referred to things as "forgiveness" rather than immunity, due to the EX POST FACTO clause..

But, since we are talking civil liability, EX POST FACTO doesn't come into play..

Michale.....
========================

As you can plainly see here, no where did I make the claim that EX POST FACTO applies in CIVIL & CRIMINAL cases... You are either lying when you make that claim or else you are delusional...

But, moving on.... Your response:

CONT

[Lemeritus]

This is exactly the kind of intellectual dishonesty at which you are so clever, Michale (although I am impressed that you were able to keep so much of the debate). Unfortunately, you used only those portions of it to bolster your claim. It is what you always do, if you reply at all. I believe we still have some unfinished business regarding Iran and diplomacy.

[Michale32086]

@CitizenFace

}}}}}}}}}}}
As I've indicated earlier, nowhere in the FISA bill is any body permitted or required to provide independent oversight as to whether procedures have been followed.
}}}}}}}}}}}

Are you SURE you want to stick with that argument??

Are you REALLY sure you want to stick with that argument??

And, when I prove this argument totally and completely wrong, will you concede the point??

A simple YES or NO will suffice..

Michale.....

[Michale32086]

And just so we can both be sure that you won't weasel your way out of things, define for me what the US Constitution considers to be "independent oversight"??

Michale.....

[CitizenFace]

I've already answered this. Scroll down to see my post from 02:24 PM on 07/24/2008 in response to the first time you asked this.

[Michale32086]

@Lemeritus

}}}}}}}}}
As I recall, you misquoted or misinterpeted Justice Chase's definition of ex post facto in Calder v. Bull. I called you on it.
}}}}}}}}}

Isn't it so much fun to rewrite recent history?? :D

Truth is, you made the claim that HR6304 violated the US Constitution by the EX POST FACTO clause (Article I, Section 9)

I told you that you were wrong. That Ex Post Facto only applies in criminal issues, not civil.

You posted Calder v Bull to "prove" your claim..

I took your own source and proved that Calder v Bull actually provides the precedent to prove my position, not yours.

You then disappeared for a while with your tail between your legs..

Michale......

[Lemeritus]

Aren't you lonely here, talking to yourself?

In fact, I noted Calder v. Bull regarding ex post facto, specifically quoting Chase's definition. In your many, many, many, many, many, many comments on the subject, you said it applied to BOTH civil AND criminal laws. That may have been a typo on your part -- don't know, don't care. But isn't it just like you to sruggle to have the last word (AGAIN), claiming victory to an empty house.

But don't worry -- I'm here. And I take copious notes.

[Michale32086]

}}}}}}}}
you said it applied to BOTH civil AND criminal laws.
}}}}}}}}

Prove it... Because I know it did not happen that way..

I'll give you a chance to prove it before I totally wreck your claims.. AGAIN...

}}}}}}}}}
But isn't it just like you to sruggle to have the last word (AGAIN), claiming victory to an empty house.
}}}}}}}}}

I wonder if you can POSSIBLY comprehend the utter hypocrisy of this statement. :D

"empty house"??

And yet... Here you are... :D

"I am laughing at the "superior intellect."
-James T Kirk, THE WRATH OF KAHN

Michale.....

[Michale32086]

So, in other words, your ENTIRE unconstitutional argument rests on one premise..

That the DNI or the AG or the DOJ or SOMEONE in the Executive Branch may lie about following the law??

In essence, you are using the same argument that bgregs used before... (You are not bgregs, are you??)

That argument being that, because someone somewhere COULD break the law, then that means the law is unconstitutional...

You really could not be more wrong than you are with that argument...

Ignoring for the moment the House & Senate Committee oversights that take place throughout HR6304, the simple fact that JUST because someone COULD break the law, that doesn't make the law itself unconstitutional..

It simply makes BREAKING the law unconstitutional...

Which is as it should be...

Michale.....

[CitizenFace]

"So, in other words, your ENTIRE unconstitutional argument rests on one premise.."

No, I've noted several reasons why the law is unconstitutional. This argument is one of those. Scroll down if you need a refresher on the others.

"Ignoring for the moment the House & Senate Committee oversights that take place throughout HR6304..."

As I've indicated earlier, nowhere in the FISA bill is any body permitted or required to provide independent oversight as to whether procedures have been followed. The Congressional Committee "oversights" you mention are reviews conducted by various members of the Executive branch that are then submitted to those committees. Without INDEPENDENT oversight, those Congressional Committees have no way of knowing whether or not the reviews conducted by the Executive branch accurately reflect whether or not procedures were followed.

"...the simple fact that JUST because someone COULD break the law, that doesn't make the law itself unconstitutional.."

As I said, there are several reasons why the law is unconstitutional. But if you want to focus on this oversight issue for now, that's fine. The Fourth Amendment states that we have the right "to be secure... against unreasonable search." The lack of oversight that I discussed is a breach of our security from unreasonable search. Whether or not procedures are followed, the lack of oversight means we can't KNOW if they're being followed and if our rights have been violated. Thus, we have no security from unreasonable search, as the Fourth Amendment requires.

[Michale32086]

@CitizenFace

So, is that a "YES" that you will accept the proof of the text of HR6304 with regards to your oversight false claim and will concede the point??

Or is that a "NO"??

Michale.....

[Michale32086]

I realize that ya'alls irrational hatred and politically bigotry won't allow you to read the below commentary in an objective and rational manner, but it's worth a shot...

http://online.wsj.com/article/SB121694247343482821.html?mod=opinion_main_commentaries

Michale.....

[milo9]

Mike, it looks we'll be on opposite sides of the coming civil war. You seem to have no regard for civil liberties, in spite of the fact that Civil Liberties and the guarantee of such has been a hallmark of America since it's inception. You seem to have a problem You need to answer the question, Are You An American?

[Michale32086]

Well, A> I don't have the problem, you do..

And 2> I don't NEED to answer any of your questions, but I will be happy to..

Yes, I am an American.. Born and bred in San Diego, CA... I am the veteran of two branches of the US Armed Forces (USAF and US Army), I served as an MI EllTee during Desert Storm. I have been an LEO and an FSO for nearly a quarter of a century and have served as a military and intelligence liaison to a dozen different countries all over the world...

So, tell me.. What bona fides do YOU have that would allow me to think you are qualified to comment on the issue before us? What training or experience do YOU have that would allow me to take what you say as a learned opinion??

Hmmmmm???

Michale.....

[milo9]

United States Army '69-72',

All those crendentials, wow, I'm impressed, yet one can assume you're part of the power structure that created the current morass. No wonder you're such an ardent promoter of the status quo.

All those credentials and your argument is that the FISA revision is acceptable. Even Nancy Pelosi admits it has to revisited and "fixed".

All those credentials and you can't recognise that Retro-Active Immunity is a cover-up.

All those credentials makes one wonder if you're part of tthe Christo-Fascists that have infiltrated the Services especially the Air Force.

All those credentials, yet your arguments sound so pre-law.

My credentials? "I have nothing to declare but my own genius". (O.Wilde)

[milo9]

If you're active duty, the way I understand it, you're not supposed to be weighing in, publicly, on political matters.

Wouldn't it be ironic if you were to be swept up in a warrantless drag net and subsequently reduced in rank to E-1. Ha Ha , poetic justice.

[milo9]

Mike I'm still hoping that you'll use your incisive mind to compare/contrast FISA before and after.

What you posted in reponse was nearly identical to the e-mail I recieved from Senator Dianne Feinstein to justify her traitorous vote.

"What HR6304 does is to provide guidelines and structure to the FISA bill that takes into account the massive changes in the technology that has taken place since the FIS Act was introduced in 1978.

As I have stated many times, FISA is woefully inadequate to handle CT operations, even with the amendments that have been added. It should be relegated back to what it was intended and a new system be created specifically for CT operations.

Regardless of my personal opinion, HR6304 is sorely needed."

It would seem that you and her are on the same side.

[Michale32086]

}}}}}}}}}
What you posted in reponse was nearly identical to the e-mail I recieved from Senator Dianne Feinstein to justify her traitorous vote.
}}}}}}}}}

So, what are you saying? Now I am Dianne Feinstein?? :D

}}}}}}}}
It would seem that you and her are on the same side.
}}}}}}}}

And....???? What's your point??

If your intent was to "shock" me by stating that Feinstein and I share views and opinions, you are going to be in for a rude disappointment.. With a few exceptions (4 to be exact) I am probably the most liberal one in these blogs.. I even share some of the same opinions with George Soros and MoveOn.org which disturbed me a HELLUVA lot more than any shared opinions with Feinstein.. Which is to say, not really that much.

So, you'll have to do better..

Michale.....

[milo9]

If you're ok with being on the same side as Dianne Feinstein. There's nothing I can add.

As far as being "the most liberal one in these blogs", you just blowing smoke out your ass. You don't have the history to know.