| hungry for crooks? read http://moralsurgeon.blogspot.com/2007/10/nola-rico-relocations.html | |
| http://www.salon.com/opinion/greenwald/ Saturday October 27, 2007 09:46 EST Fred Hiatt's concern over "costly litigation" for AT&T and Verizon(updated below) Of all the dumb and dishonest arguments in favor of telecom amnesty -- and there are many -- the dumbest and most dishonest is that it is unfair to subject telecoms to the "high costs" of defending against these lawsuits. It should come as no surprise, then, that this is the principal argument The Washington Post's Fred Hiatt advances today in his latest call for telecom amnesty: As we have said, we do not believe that these companies should be held hostage to costly litigation in what is essentially a complaint about administration activities.In 2005, the total revenue of Verizon -- from telephone services alone -- was $75 billion. ATT's total 2006 revenue was $63 billion. Whatever the "costs" of defending these lawsuits are, it is a minscule -- really undetectable -- amount to these companies. Whatever the telecoms' motives are in wanting amnesty for their lawbreaking, being relieved from "costly litigation" has nothing to do with it. Trite pseudo-populist rhetoric about the "high costs" of litigation might work when it comes to lawsuits against small businesses or individuals. There, attorneys fees and other expenses really do make lawsuits expensive to defend. But they still have to go to court to prove they did nothing wrong. That is what it means to live under "the rule of law." And telecom lawsuits could be "costly" if telecoms are found -- without any good faith basis -- to have broken the law and/or violated the constitutional rights of their customers. But to claim that telecoms like AT&T or Verizon -- whose revenues are measured in the tens of billions of dollars -- care in the slightest about "litigation costs" from a single set of lawsuits is just preposterous, really just a stupid thing to say. These telecoms have been participating in this "costly litigation" for the last two years and they seem to be managing: SAN ANTONIO, Oct. 23, 2007 -- AT&T Inc. (NYSE:T) today posted strong third-quarter results and delivered its tenth consecutive quarter of double-digit growth in adjusted earnings per share. Results included an increase in wireless subscribers of 2.0 million, further advances in enterprise business trends and accelerated expansion of AT&T's next-generation TV service.Believing that the costs of litigation are relevant in the slightest to corporations like AT&T and Verizon -- as Hiatt obviously does, or at least pretends to -- is to display exactly the lack of Seriousness and Sophistication which The Washington Post Editorial Page believes itself to embody. That is additionally demonstrated by the fact that the lead counsel pursuing the case against these telecoms is a small non-profit organization with a tiny budget staffed by under-paid lawyers devoted to privacy rights and the rule of law. And all of that is to say nothing about the snide characterization from Hiatt that these lawsuits are nothing more than "a complaint about administration activities." The lawsuits allege that telecoms violated multiple federal laws directed at telecoms that were enacted as a result of the discoveries by the Church Commission of massive invasions of the privacy rights of American citizens and decades-long abuses of surveillance powers by the Government. At least theoretically, there is still a distinction in the U.S. between the Government and corporations. Corporations do not have license to break the law because the President tells them to. Isn't it unbelievable that this even needs to be pointed out at all? As the lead counsel in the AT&T case, Cindy Cohn, explained in the interview I conducted with her two weeks ago: We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government.In a civilized society that lives under "the rule of law," there is no such thing as a defense of: "I broke the law because I was told to." That has sort of been a basic tenet of justice in the Western World for quite some time now. In the United States, the President does not have the power to direct private actors to break the law. Think about how rancid and venal our political and media elite are that these basic principles even need to be stated, let alone defended from a full-scale assault. * * * A general update on the campaign to stop telecom amnesty is here.
In the NSA cases, AT&T is being represented by Sidley & Austin (.pdf), a large, fairly standard corporate law firm. Because there are multiple telecoms as defendants in these suits, the litigation costs, in some respects, end up being shared. Even assuming that these cases are generating unusually high fees, and even using net income as the standard, the "litigation costs" to telecoms is completely negligible. It does not even show up on the financial radar. If the non-profit EFF can manage to prosecute these lawsuits, AT&T and Verizon can obviously easily defend them (and indeed, it is almost certainly the case that the litigation costs borne by these litigious corporations from the lawsuits they commence against others vastly outweigh the costs they are incurring from defending the illegal surveillance suits). The real point, of course, is that corporations -- just as is true for ordinary citizens and small companies -- can dramatically reduce their chances of being subjected to long, protracted litigation by obeying the law. Hiatt's rationale -- it's so unfair to make these poor corporations endure the costs of litigation -- would "justify" granting general amnesty to corporations for all illegal behavior, i.e., it would eviscerate the rule of law. We want there to be a price to pay when private actors violate the law. But the "price" which AT&T, Verizon and others are paying from "litigation costs" is so miniscule that to cite it as a reason to give amnesty is either incredibly ignorant or purposefully dishonest. | |
.../... Demonstrating the increasing significance of these efforts, Chris Dodd has now been invited to appear this Sunday on Meet the Press, where he will be the only guest for the entire hour. His stance in defending the Constitution generally, and his specific efforts to stop telecom amnesty and warrantless eavesdropping, will undoubtedly be a major topic (see Dodd's superb Senate floor speech this week on these issues here). .../... As things stand, the FISA bill is currently in the Senate Judiciary Committee where Chairman Pat Leahy, at least thus far, is reportedly committed to stripping the amnesty provision out of the bill. Having this bill come to the floor without amnesty in it would force the Republicans to offer it as an amendment and would mean they would need 60 votes specifically in favor of amnesty in order to put it back in (because Dodd would filibuster any such amendment). That is much harder to accomplish than having the bill reach the floor with amnesty already in it and then have to drum up 60 votes for the bill generally. Thus, the key right now is the Senate Judiciary Committee, and Dodd's website is the place to go to find out how to keep up the pressure there, completely with a current whip count of Committee members who are for or against amnesty. Finally, there seems to be this notion even among members of Congress in their more enlightened moments that amnesty ought to be considered if the White House finally agrees to show them documents -- regarding the "legal justifications" for warrantless eavesdropping and the "rationale" for the telecoms' actions -- which they have been concealing thus far. But this claim makes no sense on multiple levels. First, as Marty Lederman notes, the White House's willingness to disclose these documents in exchange for promises to vote for amnesty -- i.e., their use of these documents as political leverage -- demonstrates that there is no valid rationale, and never has been, for refusing to turn them over to Congress. Why would Congressional Democrats agree to give up something so extraordinary (telecom immunity) in exchange for the White House's "agreeing" to do what it is required in any event to do -- namely, comply with Congressional oversight demands for these documents? Secondly, as any litigator will tell you, when you allow one party in possession of all documents voluntarily to show you the ones they want -- while concealing others -- the only picture you get is a distorted, biased and one-sided picture. The only mechanism for actually getting the truth is to compel the White House to turn over all documents, not to have Senators make a pilgrimage to the White House to look at the ones the White House has specially selected for them. Finally, and most importantly, if it is really true that these magic documents show how innocent and reasonable were the telecoms' actions, then they will win in court. FISA and other statutes already provide immunity for them if they acted in good faith. There is no reason for Congress to put itself in the position of judge in this matter -- there already is a real judge in a real court presiding over these cases. If the secret documents which Dick Cheney is magnanimously agreeing to share are really as exculpatory as Cheney's good friend Jay Rockefeller claims, then the telecoms will win in court and all will be good in the Republic once again. The better the secret magic documents are for the telecoms, the less is the need for amnesty. Granting amnesty to telecoms all because Dick Cheney showed Congress a handful of carefully selected documents which he is required to show them anyway is nothing more than an exercise in deceit -- enabling Congressional Democrats to claim that they went along with amnesty only because they "forced" the administration into this meaningless "concession." If Congressional Democrats end up voting for amnesty, nobody should be the slightest bit fooled by what will be their claim that they did so only because they stood firm and "forced" the White House to show them these documents. | |
.../... Additionally, Obama’s campaign has been sending the following statement via e-mail to anyone who inquired and/or complained about his original FISA statement:
That is a solid, principled statement and a clear list of commitments on constitutional and rule of law issues (contrast that with this interview which Clinton gave to Michael Tomasky in which Clinton, when asked about the series of Bush executive power abuses, can bring herself only to promise that she’s “gonna have to review everything they’ve done” — the same worthless “study” language she included in her FISA statement last night). Finally, Chris Dodd continues to back up his pretty words with actions — which, at this point, is all that really matters. His campaign provides here instructions for calling the key Judiciary Committee members (along with a “citizen-generated whip count” to keep track of each member’s position on amnesty), along with detailed instructions outlining his plan to stop it. The statements from Richardson and Obama today were both encouraging, but statements, at the point where we are, are simply not enough. As Atrios said today:
Most Senate Democrats voted “the right way” on the Military Commissions Act, but they failed and refused to play any meaningful role in the debate, even failing to speak out against it until the very last day, by which point passage was ensured. “Leadership” requires much, more more than obligatorily issued statements and meaningless votes cast on the “right side” that can be touted in a campaign. That is what is being sought, and — by leading the filibuster and speaking out aggressively on the evils of amnesty — it is what Dodd has been providing. It isn’t too late for the other candidates to do so, too. These efforts are about encouraging that to happen. The next step of our campaign — to be launched over the next couple of days — will be directed at Harry Reid and several other key Senators. Reid, in particular, has an obligation to lead here and speak out in support of the filibuster in light of his previous failure even to indicate that he will extend basic Senatorial courtesy by honoring Dodd’s hold. The most significant and encouraging aspect of all of this, by far, has been that all of this has happened solely because tens of thousands of people devoted to the rule of law and our basic Constitutional liberties have demanded it. That has single-handedly catalyzed Dodd’s leadership, compelled the other candidates to speak out against amnesty, and has forced attention to be paid to these issues. That progress — all achieved in barely a single week — is significant and should not be overlooked [except it might have not occurred without an underdog's need to shine /js.] – Glenn Greenwald | |
| http://thenexthurrah.typepad.com/the_next_hurrah/2007/10/the-dodge-on-re.html « Minimization, the Whitehouse Way | Main | Update on Gaming Intelligence to Justify War » October 27, 2007 The Dodge on Retroactive Immunityby emptywheel | |
| http://www.salon.com/opinion/greenwald/2007/03/06/cult/ Observe in the superb CPAC video produced by Max Blumenthal how Coulter immediately mocks his physical appearance as soon as she realizes that he is a liberal. And the crowd finds it hilarious. That is what she does. She takes liberal males, emasculates them, depicts them as "faggots" and weak losers, and thereby makes the throngs of weak and insecure followers who revere her feel masculine and strong. There is no way that the right-wing movement can shun her because what she does is indispensible to the entire spectacle. What she does is merely a more explicit re-inforcement of every central theme which the right-wing movement embraces. Whatever else is true, let us dispense with the myth that Coulter is some sort of fringe or discredited figure among conservatives. That such a claim is pure myth is self-evident and has been for some time. But journalists who do not rely on such evidence can at least rely on Michelle Malkin's assurances: "She's very popular among conservatives." Now the simple task for journalists is to ask why that is and what that means about this movement. UPDATE: Atrios posts one of the most stomach-turning though illustrative episodes, where various key media stars swooned over the very embodiment of right-wing contrived masculinity. |
2007-10-28
How Much 4That FISA in the Window?
A.L.
They acted illegally more than 60 days.
They acted illegally and circumvented existing FISA law until January 2007.
Goldsmith told them the program was illegal in March 2004, and Comey, with Ashcroft's backing, refused to continue to allow DOJ to sign off on the illegal program. Instead, Gonzales signed off on the illegal program. This deliberately illegal period (where they had been told by the OLC and DOJ that the program was illegal) lasted for a period of "less than 60 days", then they apparently changed the program in some way to get the DOJ mutineers back on board.
They were illegal before March 10, 2004, flagrantly and knowingly illegal for 60 days thereafter, and probably illegal until they started using FISA again. Then FISA told them they were still illegal. So they had a tantrum and got congress to change the law. They are now trying to get immunity for the TelCos, but in reality, the immunity is for their sorry, illegal asses.
But make no mistake, the illegality was longer than the "less than 60 days".
Cowed and Caving: The Democrats' Logo ForeverTelCo immunity is essentially a sorry place to make a stand. It is jailing the hit men while the Don goes free. We need to go after the criminals who compelled the TelCos to collaborate with "presidential authorization". I hope that SJC will make a stand; the SSCI could just be a pass to let the matter get escalated in a more favorable venue. I have to believe that Whitehouse is playing smart. I have seen nothing else to suggest otherwise. Unfortunately, if it slips through SJC, immunity for everyone will likely be a done deal. Posted by: drational | October 27, 2007 at 23:49
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I think it's important, and I haven't seen EW address this directly, to underscore that State Secrets, the politics of redaction, and selective leaks are certainly not just a Republican MO. The democrats have been doing this consistently in the 109th and 110th Congress.
All of us are pretty interested and good at finding media sources. Some of you, particularly the ones who live in and around DC or used to, ya know who ya are--former US Attorneys in the DC area like Christy or former Congressional and Senate staffers who are attorneys are aren't but know all the kabuki dances around the cloakroom--how to avoid a hearing--how to avoid a markup, etc. etc.
What's struck me consistently is that I haven't gone down as many "dead end roads" since I was 16 and got my driver's license. Then I wanted to see where all the roads around my city led to, and I didn't have to ask anyone to do my exploring.
Every time I want to know what the hell is going on, I'm hit with a dead end sign that says "We'll discuss this in closed session." Nearly anything substantive is discussed in closed session. The Bushies of course selectively leak to the point of one big tautology, and the dems have done zip over diddly zip to stop them.
There's been a lot of ponderin' on Retroactive Immunity, and just as bad the enigma enshrounded in a mystery of SSCI's pathetic bill where it's left up to the AG to decide--not Congress--not the Courts whether there is any reason to call anything a violation--and baby not any AG you're ever going to see will--I don't give a damn who is in the white house (the Democrats went down faster than Pam Anderson in the back seat of a car after a high school football game and they always frigging do.
The government's arguments in the 9th Circuit State Secret cases against the Telcos has been pathetically stupid and one of the panel correctly invoked Alice in Wonderland at the last day of two oral arguments.
Again, again, the bottom line is I don't care who fillibusters and it's pathetic that it only seems to be Dodd--possibly Joe Biden willing to--but ya gotta have 60 votes to invoke cloture and with all the democratic defector sell outs the Administration has that as a slam dunk. This party's way over and the fat lady sang long ago.
Since as everyone knows, most of the switching and circuitry for any of these calls is located in the US I don't care what Mickey Mouse distinctions are made about calls overseas to and from yada yada and yada, your ass is tapped now and it's going to continue to be because your democrats have been completely cowed--completely runnover by the politics of fear. It is the one infrastructural mantra of the republicans. I see it constantly from the Bush administration, and I see it from Republicans on the local level.
The Rove email has gone out--use fear, fear and more fear. This weekend, in Georgia, in a case that caught national attention the Georgia Supreme Court freed a kid kept in prison 2 years serving a 10 year sentence for oral consensual sex. The Republicans in that legislature blocked retroactivity on a "Romeo and Juliet" change in the law that made oral sex in a country where the average age of first intercourse is about 14 a misdemeanor. They stupidly did not make the law retroactive for no good reason. but here's the one the Republicans gave then and yesterday. The Senate leader said "Everyone should be scared to death and more afraid than on Halloween that hundreds of sex predators would be roaming the streets now because of this opninion." This is an intentional lie on both the facts and the law by an individual who lies nearly every time he opens his mouth. A handful of cases will be impacted where the consensual sex in minors 13-15 is "no more than 4 years difference in age." It has nothing to do with sexual predators.
But look what all the Republican fear mongers immediately invoked: "Hannibal Lecter is out there and he's gonna get ya because of a liberal decision."
It may be simplistic analysis but it's accurate. I would like to have anyone show me one good reason why this horrible Surveillance update is not a slam dunk done deal. It is because the Democrats will not lift a finger to meaningfully oppose it. Like lemmings, they can't wait to follow the Republican lead into the sea running from the bogey man.
Steny Hoyer, Pelosi, Schumer, Emanuel, the biggest cipher Specter, Feinstein who to me is Leiberman in frumpy drag, every one of them is cowed and caving. I'll repeat, if you want to characterize the Democrats in the House and the Senate they are cowed and caving at all times.
So here's what you can count on in the final analysis besides no sustained fillibuster on the Telco bill:
No significant resistance to the politics of fear pushed incessantly by the Republicans. It's working beautifully for them. They get whatever the hell they want.
The Democrats can't cave fast enough, quickly asking if they can "have another one."
In the category of the only things the Republicans don't continue to control for lack of a conviction in the Democrats (and a spine):
.../...The four day work week is back in with the blessing of the Democrats who want to corporate jet out of there on Wednesday and Thursday. // Posted by: Pete Pierce | October 28, 2007 at 03:07===--===--===--===--===
If you want to follow individual Committee or House and Senate votes, WaPo has this site:
Vote Database
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-Pete Pierce -Thank you for your honesty. As you say, the game is up. I waste so much of my precious time worrying about when honesty and true government will be returned to us that it sometimes makes me sick in the stomach, and certainly in my emotions. The answer is never. The system is broken, debauched, and is in its end state. All that remains is the long wake and the eventual funeral. In the meantime everything else we depend on for our wellbeing is like an old, broken down car that keeps getting worse and worse and worse until it too finally and completely collapses. // Posted by: agincour | October 28, 2007 at 06:32
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1. Keep in mind that Judge Taylor, in one of the only rulings “on the facts” to date,.../..
2. While normally ex post facto discussions wouldn’t be very applicable to an amnesty approach, the FISA legislation created not just a criminal aspect, but a civil cause of action and penalty..../...
.../...4. There is something very off about either what the committee is saying or Comey’s testimony (or both)..../...
COMEY: I believed so.
SPECTER: Then it was going forward illegally.
COMEY: Well, the only reason I hesitate is that I'm no presidential scholar.
But if a determination was made by the head of the executive branch that some conduct was appropriate, that determination -- and lawful -- that determination was binding upon me, even though I was the acting attorney general, as I understand the law.
…
SPECTER: …
The point that I'm trying to determine here is that it was going forward even though it was illegal.
COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality.
There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign.
So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off.
…
SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?
COMEY: Yes, Senator. And I...
SPECTER: Did you make that determination?
COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning.
Ok, I’m not the biggest Comey fan around, but I do think he was trying to be forthright and relatively forthcoming at the hearing and I also think he’s not an idiot. And despite the elbows he takes, Specter isn’t an idiot. IMO, this was some of the most important questioning they had, given the telecom statutes and telecom issues.
Something’s very rotten. // Posted by: Mary | October 28, 2007 at 11:33===--===--===--===--===
I wanted to leave some helpful links for the curious. One is a CDT-EFF amici brief in the 2006 TX case regarding the controversy in the narrow domain of post cut-through dialed digits; as usual with a thorough court brief, much value is available in the elaborated case history and footnoting. Another time machine glimpse is a cameo interchange among principals including Sen.Leahy and Gperson agency leader Freeh in 1994 there, in a composite hearing of both chambers' telco oversight committees. // Posted by: John Lopresti | October 28, 2007 at 14:39
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Dismayed - I have the same frustrations every hour of every day. Government is broken right now. I disagree that any of the mechanisms are gone though; they are there, just un-utilized, under-utilized or misused. The path back, and really the only path back is us, the people, as a collective. A social awakening to our history, our foundation, what the principles stand for and why, and how the actions of the past 25 or so years, but especially the last 7 years, have lessened our standing and value as a country and as a people. You have to want good government, and be willing to sacrifice and work for it; americans have come to be deluded with self perfection and that the social fabric of our society comes not only free, but with a tax cut. That is not the case.
Phred - "Color of Law" is simply a term of art in the legal field that means the appearance or presumption of legal authority. For instance, a police officer may, in his duties, commit an act that is illegal; but he is presumed to be acting under the "color of law" because he is a lawfully appointed peace officer. // Posted by: bmaz | October 28, 2007 at 21:02
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So here we have telcos and rethugs pushing for immunity, but from what? Will someone please tell me why congress doesn't pull a few of these cats in for questioning in exchange for immunity. I suppose the executive would block that under state secrets.
Which brings us back to impeachment. Right? At this point it's abundantly clear that the law was broken. Is no one interested in enforcing the law? This just continues to boggle my mind. Government really is very broken at the moment. Where's the path back.
That's what I want to know. Government is broken. Our dems are complicent. Where's the path back? I think our focus on procecution, and pursuit of justice and accountability has become a waste of time. We've got to look for a path back to where the mechanisms for the pursuit of justice and accountability are even in place! Some one tell me what's the path? It's hard to have a trial when the courthouse is gone. //Posted by: Dismayed | October 28, 2007 at 20:25
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Dismayed, I share your frustration, but I don't think our focus on the rule of law and pursuit of justice is a waste of time. I think a lot of Americans believe, as I did once, that there are laws in place already that we can use to address pretty much anything that comes down the pike. Clearly, this is wrong. There are massive loopholes that people in power manipulate to their advantage. Such people have the further advantage that the rest of us are clueless about what they are doing and have done.
I can certainly talk a lot more intelligently about how the administration and Congress are abusing their power than I could in the past. The usefulness of that is first I can let my friends and family know what I have learned (and point them in the direction of particularly helpful blogs). And second, it makes it a lot easier to put politicians on the spot. Ultimately our elected representatives are [NOT - because its all rigged touch-screen HAVA racketeering 'vote' machines / js zog] answerable to us at the ballot box.
In my experience, Americans care deeply about our rule of law. We pride ourselves on it. Honest people may disagree on policy, but you rarely will run into anyone who thinks the separation of powers is a bad thing. It is equally rare to find someone who thinks the laws ought not to apply to powerful people. Hammering home the illegality of Bush's conduct (and even Pelosi's rewriting of the Constitution that removes the impeachment clauses) seems to me to be the best approach to use in unseating ALL incumbents who treat the laws as if they only applied to us little people. The more we know, the better we can make that argument. Congress has let us down. Now it is our turn, We the People, to restore the rule of law at the ballot box and in the courts. For the latter, I must depend on the guidance of our lawyer friends here to fill us in on how exactly the latter might proceed.
You asked someone to show you what path we can take. I don't know, but the only path I see is the arduous one of informing ourselves and everyone else as best we can and try to wrest control of our country back from those who are working so hard to take it from us. // Posted by: phred | October 28, 2007 at 21:10
[only two comments below this/fing heinous waste of lives made putrid by a village idiot and his high school educated pied piper leading clamouring lemmings off their debauched-bible's armageddon cliff WHEE! the CZ's found their messiah in the antichrist buffoon that heard 'god' tell him to strike at Quaeda / js zog]