"Save the Endangered Telecom?" Absolutely NOT!!! (printable)

Topic: FISA Reform, and Telecommunication Companies
"Save the Endangered Telecom?" Absolutely NOT!!!

Should Telecommunications companies that aid and abet government requests, to violate the 4th Amendment against third party evesdropping, really get to go scott-free? The FISA and Telecom Immunity Act, (House Bill HR 6304, the FISA Amendments Act of 2008) is a travesty of justice, and a mockery of our representative system. Our elected representatives have completely sold out to political forces, and violated their public trust.
by Gary Trieste
(libertarian)
Wednesday, June 25, 2008

gary trieste

Outrageous.

Simply. Freaken. Outrageous.

The Bush Administration and its ilk have managed yet another repeat of the same kind of legal travesty committed in the pardon of Scooter Libby after he was found guilty.

The efforts being made to shield these outlaw companies from prosecution, joins the long list of outrages foisted upon the American people by the Bush Administration.

Like the Libby case, here is an unequivocally guilty set of defendants, charged in court and ready to face the hammer of justice.

But lo and behold, like a god descending from the sky in Ancient Greek theatre, comes George W. Bush, with his magic pardonesque powers and influence. Poof, no more liability!

Break the law, then by executive fiat have any and all liability for it erased. It is so obviously bad that it is stunning by its very procession.

As Keith Olbermann put it: "It is the fixed ballgame, and the rigged casino, and the pre-arranged lottery, all rolled into one. And it stinks."

Amazingly, this illegal wiretapping, in blatant violation of law, is not something that only happened in the past. Indeed it is still going on today, a continuing violation of law that everyone knows about, but no one in government does anything to stop it - except to legalize it post hoc (and that includes Sen. Barack Obama).

Despite those politicians in favor of retroactive immunity, the American people are strongly against it -

There are no outraged citizen groups calling for this law; no grassroots or populist cause, no picket signs saying "Save the Telecom"; no folk songs or protesters calling for an end to the oppression of the Telecom. Of course these images are outrageous - no one supports the protection of large corporations to flagrantly break the law.

In fact it is quite the opposite, citizen groups are heavily pressuring (begging?) their representatives NOT to pass this law.

Grassroots movements often work decades at getting a bill enacted into law for their cause, but here we see a law being moved into enactment at such a fevered pace there isn't even a Senate version of the bill, or even a bill number. There hasn't even been enough time for our legislators to have read the bill

The thing is careering so fast that even professional legislation watchers, who are staring this issue down like a hawk, didn't see it coming:

We haven't seen the compromise bill yet (it was just filed and we just learned about it at 11:45 AM Eastern -- while I'm writing this message). So I can't give you the details of this bill because it could be rushed to a vote by tomorrow (not the seven days Congress should wait after reading a bill).
DownsizerDC.org on June 19, 2008,

And now only days later, it is before the Senate ready to be voted upon.

You can almost sense the undercurrent of manic urgency as it proceeds down the halls of Congress: "Quick guys, gitter done before anyone realizes what's going down"

So who the hell is for it?

Unlike the Libby pardon, this thrust to preempt consequences from government wrongdoing is by nature more spread out. But it still flows from the Bush Administration and his like minded coalition, who have elicited a campaign to cajole and bamboozle weaker willed members of Congress into what is laughingly called a compromise bill. In fact it is a capitulation bill on the issue; there has been very little compromise.

It the culmination and the fruit of stark unbridled political power and of monied special interests (e.g. the targeted telecom companies) that is pile-driving this bill through the House, Senate and Executive and into law.

Bush and his band of merry men, stand a lot to lose if any of the 40 or so ongoing telecom lawsuits come to the discovery stage and trial, as this was one of the more unambiguous violations of law he has orchestrated.

Behind-the-scenes pressure is being put upon politicians who aren't in favor of the bill, quid pro quo agreements are being traded, and markers are being pulled in from every crook and cranny from which it is owed.

New evidence recently emerged that there might be another reason as to why so many House Democrats voted in favor of Telecom Immunity - Graft.

It appears that in the passing of the bill in the House of Representatives:

House Democrats who flipped their votes to support retroactive immunity for telecom companies in last week's FISA bill took thousands of dollars more from phone companies than Democrats who consistently voted against legislation with an immunity provision, according to an analysis by MAPLight.org .
. . .
The members who voted yes [in favor of Telecom Immunity] on June 20 received, on average, $9,659 from the big three phone companies while those who opposed the bill received an average of $4,810, MAPLight found.
The money provides special interests with a bigger megaphone, Newman said.
"Who's more likely to get a meeting you or AT&T, which donates million of dollars and has the legislator's ear?"
See: [link edited for length], and maplight.org/FISA_June08

How it is supposed to work: the good, the bad, and truckley.

As in any business arrangement, there was/is an expectation of contractual stability between the telecoms and its customers. And there was an expectation of contract adherence, enforceable by law.

Especially here, the telecoms had legal duties beyond private contractual agreements, they had a duty to adhere to regulatory and statutory law, premised upon constitutionally protected rights.

(Notably, some of those telecoms, Qwest and Verizon Wireless, had the backbone to recognize right from wrong, and refuse to enter into this illegal conspiracy.)

And being in the privileged position of handling citizens' private communications, they had a further duty to the society in general not to break the laws of the Constitution breaching the privacy of its customers.

That they intentionally failed to do so is not controverted, their only claimed excuse is, the executive branch of the federal government requested them to do so. Not even demanded -

"Yeah, I broke the window, but Mikey asked me to do it! Its not my fault!"

Put another way, if a someone was told to commit murder by a government agency, and did so, could they then claim immunity because a government agent told them to do it?

"So what I told our sworn secret to someone else. What's the big deal? Nobody got hurt."

An attempt at liability mitigation due to a plaintiff's undocumented losses, is also not a valid legal defense in this case. Where the subject encouraged activity known to them to be regulatorily, statutorily & constitutionally protected.

Even if a lack of articulable damages are a missing element for ordinary civil liability, in this case nominal damages are substitutable, via statutory definition, for actual and monetary damages, i.e., if it happened - then there were damages by virtue of it happening.

It is societally considered so evil by inception, that wiretapping without legal authorization is considered a heinous damage in of by itself, and damages in monetary terms are set thereon.

This is the basis for a winning lawsuit by any standard.

The Mandate of Due Process Is Sacred, without it just take another step to Fascism

This retroactive immunity bill serves absolutely no citizen. It only serves those in power, who want to keep it that way.

It serves to impress upon all the preemptive power of the of the State, and it shows future actors that the government can slash and burn away any rule or law in effect as it sees fit. These short-circuitings of law set an immoral precedent to all private companies and citizens - if the government asks you to do something illegal, you really don't have to worry about the consequences, because in contradiction of all the rules and expectations of due process and established law, get-out-jail free passes are available for the right people.

Its like a Bill of Attainder , only backwards - instead of illegalizing a private activity after it happened, they are retroactively saying it was legal in the first place, changing history, irrespective of the law at the time.

Strong shades of Orwell's 1984, where it makes no difference what your memory tells you, it's what the State tells you what happened that is actually true.

Article 9 of the U.S. Constitution that says, "No Bill of Attainder or ex post facto Law shall be passed."

An ex post facto law is defines as, "a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law."?

Although retroactive clemency is far more jurisprudently tolerated than retroactive penalty, in this case the defendants didn't just break victimless laws, they affirmatively and knowingly directly harmed a whole class of people.

Vote the Bums out of Office?

After all the crap we had been put through, and all the dangerous giddy Republican goofiness we saw. It was a neverending parade of hypocrisy and self-righteous grins, of proffering a supposed Republican moral high ground for others to live up to, and an era of saying one thing and then doing the opposite, e.g., sex scandals, auto-culpable homophobic vilification, faux fiscal conservatism, and culpable drug abuse. Their antics reeked of their unspoken hauty sentiment: "We are simply superior to you plebs, we are the rulers and you are the serfs. You do not question what we do or how we do it, because we are as King, and can do no wrong."

It was obvious they were in power too long and needed a reality check. So we as a people, voted the bums out, en masse.

So we voted Democrat, installing a legislative majority to save us from the imperious bullshit we saw played out on the stage of Congress and Senate. We would have (and most certainly will) voted out the Executive Branch if we had had the chance.

The whole canonical story of self-correcting democracy was played out before the public arena, and the message sent: When politicians go bad they get voted out of office and get replaced with reformers sensitive to the public's grievances. We sent this message to our leaders, but the followup question remains: Was it received?

In that changing of the guard, the public trust was transferred to the new slew of Democratic legislators.

A new hope and anticipation was in the air - they would reform and redress the reckless, immoral and wanton behavior of their predecessors, as we were promised in their campaign declamations.

We rightfully expected the sweeping oratory of the Democratic leadership to be put into action, assurances that there would be a house cleaning, a new way of doing things, and formal inquests of all the questionable antics and actions of the previous reigning body.

And yet, what did we get? A changeling of what we were promised. Only loads more of the same duplicity. A different flavor perhaps, a different texture to the palate, but still same old sewage served up with Hollandaise sauce and a big sprig of parsley.

Did we get an impeachment from the Democrats? The case is far stronger here than it ever was for Clinton. [link edited for length] No.
Did we get inquests as to the billions in cash unaccountably "lost" in Iraq? No.
Did we get an end to the Iraq war/occupation, or official inquiry as to how it started in the first place? No.
Did we get a buck-stops-here resolution, a personal liability for those federal officials negligent in allowing the 9/11 attacks to be successful? No.
Did we get any legislative condemnation correcting the Bush Administration's ad hoc rules of extraordinary Rendition, suspension of habeas corpus, or the imprisoning American citizens w/o charges for years and denial of access to courts, counsel and media? No.
In electing Democrats, did we get a redress of the most indefensible, conspicuous violations of law that the Bush Administration starkly committed, the illegal wiretapping of the American people en bloc? NO!

Worse even, these "reformers" managed to do the opposite - they are in the process of formally validating Bush's actions as having been legal retroactively, even when everyone knows the whole thing was a rogue operation from the highest levels.

As Constitutional Law Professor Jonathan Turley (George Washington University School of Law) observed:

They repeatedly tried to cave in to the White House only to be stopped by civil libertarians and bloggers and each time they would put it on the shelf, wait a few months, they did this before, reintroduced it with Jay Rockefeller's support and then there was another great dust up and they pulled it back. I think they're simply waiting to see if public's interest will wain and we'll see that tomorrow because this bill has no quite literally public value for citizens or civil liberties. It is reverse engineering. This is the type of thing the Bush administration is famous for and now the Democrats are doing. That is to change the law to conform to past conduct. It's what any criminal would love to do.

As of the date of this article, the US House of Representatives has already passed this bill (sickeningly) overwhelmingly. And there are only days before the Senate votes on it.

If it passes the vote there, the bill will get inhaled by GW Bush and feverishly signed into law, mocking justice and burying any redress of the wrongdoings of his stoolies.

(You can lodge your outrage and opposition to this telecom immunity bill via email to your Senator, by sending them a personally worded post, here by email or by telephone to the Speaker of the House - see: [link edited for length])

When we voted OUT the Republicans, we apparently did not vote IN any crew fundamentally better as we had hoped.

We were enraged and offended and we wanted redress, and we gave our trust to the new general assembly. But then that public trust was also repeatedly broken, revealing what Libertarians have been saying all along - whether you vote for Republicans or Democrats, you are still going to get the same old insubstantive politicking, self-preserving band of intelligent idiots that you had last time - Ignoble Republicrats that choose expedience and kowtowing to special interests, over American ideals, American people, and Constitutional law.

When will we get a government of Principle?

The American electorate is becoming increasingly exasperated with the whole bait and switch cycle of elections as libertarians have known it to be. Maybe they will take the tentative steps toward electing politicians from a party of principle. The Internet has become a powerful catalyst in reifying this collective discontentment.

The big question is, how many generations must pass before the public comes to its senses, and recognizes that only when we elect a body of principled men will we get principled government.

When men pledge allegiance to a political party over an allegiance to their country, its people and its Constitution, we will never get principle.

The telecom immunity debacle, however awful it is, is just a symptom of the sickness that must be purged from the so-called leadership of our country and nation.

The views expressed in this article are those of Gary Trieste only and do not represent the views of Nolan Chart, LLC or its affiliates. Gary Trieste is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.

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