Letters to the Editor
Frankly, my dear, ...
Published Letters: 635
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Precedent for immunity
[Read the article: The Beltway Establishment's contempt for the rule of law]
[Read more letters about this article: Here]The Military Commissions Act of 2006 granted immunity to "the United States and its agents" retroactive to September 11, 2001. Essentially this relieved any agent of the federal government from the threat of prosecution under the War Crimes Act of 1996 (18 USC I.118 § 2441) or the torture statutes (18 USC I.113C § 2340-2340B) for offenses involving "enemy combatants":
(a) ...
"(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.".
(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.
Of earlier precedents, I don't know. But the Military Commissions Act of 2006 was one of the worst pieces of legislation passed since the Alien & Sedition Acts of 1798.
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Karrsic
[Read the article: The Beltway Establishment's contempt for the rule of law]
[Read more letters about this article: Here]Dumb questions, but why is the Justice dept the only valid prosecutor? Couldn't state laws have been violated?
The only really dumb questions are the ones that you don't ask.
But in my statement I was thinking specifically about the laws that Glenn cited in his article, which are all federal statutes. It flitted across my mind when I was writing it that there may be state laws that have been violated, and if some state's attorney really wanted to bring a prosecution, he/she could probably find a law to do it under; but I can't imagine a state's attorney willing to undertake a prosecution against a telecom giant. In the first place, it would likely tie up all his/her resources for an indefinite time, effectively bringing the operation of the state prosecutor's office to a standstill (these people have at least ten times the legal and financial resources of any state prosecutor). Then he/she would need evidence that would have to be provided by federal agencies and they would just tell him/her to eff off (state secrets and all that). So while it might be theoretically possible for a prosecution under some state law (presumably necessarily in a state in which one of the telecoms is located or operates), I would place the actual likelihood of this happening at virtually nil.
The real danger to the telecoms is still civil liability for violating the contractual agreement with their subscribers. When they contract not to divulge the subscriber's personal information and communications "except as provided for by law" and then abrogate that agreement, if someone who can show standing can manage to bring a suit (without having the ground cut out from under them by "state secrets"), the telecoms are facing a world of hurt.
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Tobacco litigation
[Read the article: The Beltway Establishment's contempt for the rule of law]
[Read more letters about this article: Here]It flitted across my mind when I was writing it that there may be state laws that have been violated, and if some state's attorney really wanted to bring a prosecution, he/she could probably find a law to do it under; but I can't imagine a state's attorney willing to undertake a prosecution against a telecom giant. In the first place, it would likely tie up all his/her resources for an indefinite time, effectively bringing the operation of the state prosecutor's office to a standstill (these people have at least ten times the legal and financial resources of any state prosecutor).
Yes, but I would hold up as the hopeful example the tobacco litigation. This is another case that would have fared better with the Justice Department taking the lead, but started first with a state (I think Mississippi was first) and then was followed with a cascade of other states. While one state is a bit of a "Walter Mitty" type in going up against these guys, if they are looking at 50 cases, the odds get a little better in our favor.
— Jim WhiteApples and oranges. The state actions against the tobacco industry were not prosecutions but civil litigations in which the state had standing because it was seeking to recover state medicaid costs for treatment of citizens with diseases caused by smoking. This is not the same thing as prosecuting the tabacco industry for breaking a law. Although it took guts and gumption to go up against such large and well-heeled organizations, it is a completely different situation. Besides, there were no "state secrets" involved.
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Karrsic
[Read the article: The Beltway Establishment's contempt for the rule of law]
[Read more letters about this article: Here]Though the tobacco litigation isn't a perfect comparison, would the resource constraints be similar?
Probably, but the standards of proof are more relaxed for civil litigation (usually "preponderance of evidence") than for criminal prosecutions ("beyond reasonable doubt"). That's basically why OJ walked on the murder rap but was nailed in the civil wrongful death suit. Hence there is often less detail work in a civil case (chain of custody for evidence, etc.). In a criminal case, the prosecution has the entire burden of proof and has to prove each element of the charged offense beyond reasonable doubt. In a civil case the plaintiff has to show that he is entitled to the relief claimed through the fault of the defendant and the case may or may not involve illegal acts, only liability for the damages.
Or how about revoking their license to do business in the state? That one's right up there on the plausibility scale... ;)
As far as I know, states don't license telecommunications or broadcasting. That is a function of the FCC. So you're stuck with the feds again.