Letters to the Editor
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clamorem et uthesium
According to the most renowned Constitutional historians (e.g., Cuddihy), "clamorem et uthesium" a.k.a. "Hue and Cry," the medieval practice of ad hoc law enforcement impressment/deputization of the private sector by governments evolved into a core reason for the American revolution, i.e., colonial hatred of the British Crown's widespread issuance of General Warrants (non-specific and of indefinite duration) and Writs of Assistance (the modern equivalent of which is typified by this whole Bu'ush era telecoms' mess).
Specifically, the Framers wrote the exact language of the 4th Amendment to proscribe such practices.
More generally, the Bu'ush adminstration is trying to privatize everything in sight in part to end-run Constitutional strictures, owing to the bulk of case law declaring that private entities' activities are not subject to Constitutional limitations -- that the aggrieveds' only remedies are tort claims (which is what the telecoms are now frantically trying to nullify in advance).
Such flies directly and glaringly in the face of "conservative" Original Intent, though.
Writs of Assistance revisited.
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Get on board
If the administration is pushed, I think something like this will happen:
First, there will be a really intensive publicity campaign to convince the public that it is necessary for the security of the US that all communications be (or continue to be) searched.
Next, the claim will be that as long as the search is conducted by a computer program, not by people, and as long as the only use of the results of this search is the execution of appropriate emergency authorizations and later, warrents, there have been no amendment violations.
Congress will be expected to "get on board", that is, pass a law affirming the legality of this, past, present and future.
If the adminsitration is not pushed, things continue as they are.
Of course, no one would expect such a system to remain free of abuses.
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re: donations to EFF and ACLU
Ondelette is correct. Consequent Glenn's essays, I've now donated to both. EFF on Monday, the ACLU yesterday. I'm not sure how anyone follwing Glenn's posts these past few weeks could not. I'm grateful he has called the work they are doing to my attention. I should have been donating to them all along. And, I will continue to, even if the amounts are small. Every donation represents a person's support. And, I assume their membership numbers matter, even if in a way I might not understand.
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Too little, too late
Froomkin's column today pointed out an article by Ellen Nakashima and Paul Kane in WaPo that reveals that the White House yesterday begrudgingly made some surveillance program documents available to the Senate Intelligence Committee members and staff:
The White House agreed yesterday to give Senate intelligence committee members and staff access to internal documents related to its domestic surveillance program in a bid to win Democratic lawmakers' support for the administration's version of an intelligence measure.
The move was meant in part to defuse a months-long clash between Congress and the Bush administration over access to legal memoranda and presidential decisions underpinning the Terrorist Surveillance Program, which allowed the government to eavesdrop without court warrants on communications between people in the United States and abroad when one of the parties is a terrorism-related suspect.
[...]
Committee member Dianne Feinstein (D-Calif.), who also sits on the Judiciary panel, said however that when one of her staff members reviewed the documents, "he wasn't impressed." She added that she was unsure whether the documents the staff member saw were exactly what Leahy was seeking.
If even Feinstein believes the documents aren't responsive to the request, this must have been a pitiful effort indeed.
Is the House vote taking place yet? The article said it should be today.
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It's not pardonable
If Junya is so all-fired-up about immunizing the Telcos, then why doesn't he use his own Pardon powers to grant them that relief?
Once again, it's not the criminal liability that is the issue here. No one in this DOJ is going to prosecute the telcoms any more than they would prosecute Bush for his admitted law-breaking.
The danger to the telcoms is civil liability for breaking their contract with their subscribers. The president can't issue a pardon for that because a civil judgment does not necessarily involve an offense against the law.
The president has the constitutionally mandated right "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment" (Article II section 2 paragraph 1), but he has no power to grant reprieves and pardons from civil judgments. Removing this liability can only be done by legislation (and I'm not entirely sure that that would be countenanced by the Constitution), or, such a judgment could reversed by a court on appeal.
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Jim White
ThinkProgress reported:
House Democratic leaders postponed a vote this afternoon on legislation that would limit the Bush administration’s spying activities, a development that signaled backers did not have enough votes to ensure passage. According to a memo to members from Majority Leader Hoyer, the House will have no other votes tonight after wrapping up railroad safety legislation.
More at the link at my sig.
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@ Frankly, my dear
Your point about the "inability" of the President to "pardon" civil liabilty is well made.
But I would advance the further point that inducing Congress to provide retroactive immunity for the Telcos negates not only that "civil liabilty", but their "criminal liability" as well.
It is also likely true that the Administration's pet DOJ currently would never pursue criminal charges against these Telcos, but "this Administration" ain't forever.
Come January 2009, a new Administration will arrive and I believe the Statute of Limitations wrt to FISA criminal violations on the part of the Telcos will still be applicable.
A more telling reason as to why Junya would not pardon/immunize the Telcos would be that to do so would be likely taken by most as an admission of that these were crimes he himself has committed.
Passing the buck to Congress is still in my view a cynical and blatant attempt to draw in accomplices in covering up his own crimes. Getting the Telcos off the financial liabilty hook is just gravy.