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You are here: Home / Politics / Bush Wants Some Changes To FISA

Bush Wants Some Changes To FISA

by Tim F|  April 14, 20073:09 pm| 50 Comments

This post is in: Politics

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Outrageous, naturally.

[The proposed changes] provide for compelling telecommunications companies and e-mail providers to cooperate with investigations while protecting them from being sued by their subscribers. The legal protection would be applied retroactively to those companies that cooperated with the government after the Sept. 11, 2001, attacks.

I’m sure that the Democratic Congress will get right on that.

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Reader Interactions

50Comments

  1. 1.

    Richard 23

    April 14, 2007 at 3:24 pm

    As long as they’re only monitoring the terrorists and those who communicate with them, I don’t see a problem with this. Naturally Tim F is hyperventillating over this because it’s who he is. If these changes help continue the streak of no terrorist attacks in the United States since 2001, it would be a good thing, no?

    If they would go after those damn Nigeria and viagra spammers too, it would be greatly appreciated.

  2. 2.

    John S.

    April 14, 2007 at 3:46 pm

    As long as they’re only monitoring the terrorists

    Because they would never use their power for political purposes. I mean, we should just trust them, right?

  3. 3.

    teak111

    April 14, 2007 at 3:50 pm

    Sounds like the Bush is in full CYA mode now. The writing is on the wall. Gonzalesgate is nothing, so why not make a law that covers you ass, cept the Prezit don’t get to make laws anymore.

  4. 4.

    Face

    April 14, 2007 at 4:01 pm

    cept the Prezit don’t get to make laws anymore

    Two points:
    1) It’s now Officially Pathological that Bush is unable to understand that his Rubberstamp Congress doesn’t exist anymore. I mean…it’s been 4 months with a Dem Congress, and Bush doesn’t comprehend this yet?

    2) You better believe if Bush doesn’t get this, it’ll still become “law” thru a signing statement. Bush ALWAYS gets his way. Always.

  5. 5.

    Perry Como

    April 14, 2007 at 4:05 pm

    1) It’s now Officially Pathological that Bush is unable to understand that his Rubberstamp Congress doesn’t exist anymore. I mean…it’s been 4 months with a Dem Congress, and Bush doesn’t comprehend this yet?

    You misunderestimate Dear Leader. If the DemonRATS don’t pass these changes to FISA, it proves they want to make babies with the terriers.

  6. 6.

    demimondian

    April 14, 2007 at 4:07 pm

    If the DemonRATS don’t pass these changes to FISA, it proves they want to make babies with the terriers

    Which just shows that Santorum was right (far right) all along.

  7. 7.

    chopper

    April 14, 2007 at 4:30 pm

    Because they would never use their power for political purposes. I mean, we should just trust them, right?

    the computer is your friend.

  8. 8.

    mrmobi

    April 14, 2007 at 4:31 pm

    Naturally Tim F is hyperventillating over this because it’s who he is.

    Okay, obvious spoofiness aside, can we get a consensus here that the phrase, “because it’s who he is,” should only be uttered by someone who acknowledges never attending school?

    From now on “because it’s who he is” will be translated to, “I’m too fucking stupid to draw breath.”

    Everybody clear on this?

    Try harder, Dick. If you’re going to play stupid, your spelling should be worse.

  9. 9.

    demimondian

    April 14, 2007 at 4:39 pm

    the computer is your friend.

    Citizen, the name of The Computer must always be capitalized. Are you some kind of demislamofascisterrierist?

  10. 10.

    Rome Again

    April 14, 2007 at 4:43 pm

    I’m sure that the Democratic Congress will get right on that.

    Sure, because putting all the power in the hands of the executive branch so that they can assure they aren’t accountable to the people is the pinnacle of success of Democracy! Right?

    Can these batshit crazy powermongerers stop telling us how they are trying to bring Democracy to the world? They are doing no such thing.

  11. 11.

    Paul Wartenberg

    April 14, 2007 at 5:17 pm

    Dear Richard 23, I have a question:
    why protect the phone companies retroactively from being sued by their customers if the companies didn’t do anything illegal? Your statement

    As long as they’re only monitoring the terrorists and those who communicate with them, I don’t see a problem with this.

    implies you think the companies didn’t do anything wrong these past 6 years. So they why? Why retroactively protect them? There is only one explanation: Unless they *did* do something wrong, that wasn’t covered even with the Patriot Act(s). There is no other reason for Bush to push this.

    I’m even amazed Bush *is* pushing this. This is one huge red flag going up that begs for investigation.

  12. 12.

    Brent K.

    April 14, 2007 at 5:18 pm

    This is why they are pushing to revise FISA:

    Rep. Heather Wilson, R-N.M., who unsuccessfully sponsored legislation last year to update FISA, said Congress must act because current court orders bolstering the president’s terrorist surveillance program are legally shaky. She wants the law to be rewritten to ensure the NSA can continue the program.

    They could care less about protecting us more, it’s all to save face when the decisions on Bush’s policies come down from the courts.

  13. 13.

    RSA

    April 14, 2007 at 5:40 pm

    Okay, I’m not a constitutional scholar, but here’s what the Bushies are apparently asking for,

    The legal protection would be applied retroactively to those companies that cooperated with the government after the Sept. 11, 2001, attacks.

    and here’s what Article 1, Section 9 of the Constitution says,

    No bill of attainder or ex post facto Law shall be passed.

    It’s probably just more subtle than I currently grasp, but it sure sounds like the Bushies are asking for something that’s unconstitutional. Nothing new to see here; please move along.

  14. 14.

    jake

    April 14, 2007 at 6:24 pm

    provide for compelling telecommunications companies and e-mail providers to cooperate with investigations while protecting them from being sued by their subscribers.

    If the government forces the comm. companies to do something why the need to protect comm. companies from civil suits? And why do this now, unless they’re going to start nabbing “terrists” left and right in some sort of PR move.

    Someone please stick a gin-soaked pacifier in President BushBaby and lay him down for his nap.

  15. 15.

    curtadams

    April 14, 2007 at 6:25 pm

    Have they lost their minds? They’re not going to get such a blatant evasion of the 5th amendment now. Not Of This World, indeed.

  16. 16.

    Chad N. Freude

    April 14, 2007 at 6:27 pm

    the phrase, “because it’s who he is,” should only be uttered by someone who acknowledges never attending school

    How about “because it is his nature”?

    Paul Wartenberg: Please don’t let yourself get suckered by a deadpan spoof. Around here, the really outrageous pro-Bush postings are (supposed to be) satire, unless they’re signed by Darrell.

    No bill of attainder or ex post facto Law shall be passed.

    I’m not a Con lawyer, either, but it might be that this applies only to criminalization and it might be constitutional to pass an exculpatory law. I think there would be a strong case that a law like this is invalid because it deprives citizens of a previously held right. Would you care to chime in on this Justice Scalia? Justice Roberts? Justice Alito?

  17. 17.

    Chad N. Freude

    April 14, 2007 at 6:35 pm

    Idea for a great party game. Go through the laundry list of offenses committed by the King of England in the Declaration of Independence and try to find a matching offense committed by the Ki… I mean President of the United States.

  18. 18.

    srv

    April 14, 2007 at 7:56 pm

    Would you care to chime in on this Justice Scalia? Justice Roberts? Justice Alito?

    Well, of course if would depend on if Clinton did it, or a Republican did.

    BTW, Thankyou God.

    I was backcountry when Ronnie passed, and missed that whole greatest-american-of-our-generation-masterbatathon.

    I’ve been backcountry for the last week, so please, nobody tell me what I missed with this Imus thing.

  19. 19.

    Slide

    April 14, 2007 at 8:43 pm

    It’s probably just more subtle than I currently grasp, but it sure sounds like the Bushies are asking for something that’s unconstitutional.

    been done before:

    Along with the authorization of torture, the compromise bill would allow evidence obtained through coercion to be introduced in the military commissions that the legislation establishes. While the bill nominally bans evidence obtained by torture, this is purely a formality since torture is defined so narrowly.

    Thus, prisoners deemed to be “enemy combatants” can be tortured and “evidence” thus obtained can be used in kangaroo military courts to convict and execute them, or prosecute other “enemy combatants.”

    The compromise measure states explicitly that the Geneva Conventions will not create any enforceable rights for the individuals under US control. It also states that no court will be allowed to hear a habeas corpus or other lawsuit that is brought by any “enemy combatant” under US custody. This provision would apply retroactively to 2001, and would therefore throw out the hundreds of cases brought by Guantánamo Bay detainees that are currently in the courts.

    .

  20. 20.

    p.lukasiak

    April 14, 2007 at 9:18 pm

    I’m not a Con lawyer, either, but it might be that this applies only to criminalization and it might be constitutional to pass an exculpatory law. I think there would be a strong case that a law like this is invalid because it deprives citizens of a previously held right. Would you care to chime in on this Justice Scalia? Justice Roberts? Justice Alito?

    Since I haven’t seen the bill, I don’t know the precise provisions.

    But there are lots of ways to get around the “ex poste facto” provisions of the constitution — mostly having to do with funding. For instance, congress can pass a statute denying funding for prosecution of a previous violation of an existing statute. If the government isn’t allowed to pay a prosecutor tomorrow to convict you of a law you broke yesterday, you can’t be prosecuted.

    In terms of lawsuits, Congress has the power to determine what is, and is not, within the current jurisdiction of the courts. In other words, you would retain the right to sue — you just couldn’t find a court with jurisdiction to try your case.

    (indeed, I think — not positive — that this is how Congress voided pre-existing Habeus Corpus petitions in the Military Tribunals law. But the denial of Habeus Corpus rights to those subject to Military Tribunals remains unresolved, given that it is a right that is not merely enshrined in the Constitution that applies to everyone (not just citizens), but predates the Constitution itself. Habeus Corpus is a right that is ASSUMED to exist, which the Constitution only permits the “suspension” — not the denial — of, and only “in Cases of Rebellion or Invasion the public Safety may require it.” If the Supremes do upon that provision of the Military Tribunals Act, we’re in deep shit, because there is simply no way to affirm that provision without stretching the Constitution to the breaking point.)

  21. 21.

    Perry Como

    April 14, 2007 at 10:24 pm

    But the denial of Habeus Corpus rights to those subject to Military Tribunals remains unresolved, given that it is a right that is not merely enshrined in the Constitution that applies to everyone (not just citizens), but predates the Constitution itself. Habeus Corpus is a right that is ASSUMED to exist

    That’s just more of the pre-1215 moonbattery you leftists are known for. By your own admission habeas is an assumption. And you know what happens when you make an assumption. You make an “ass” out of “u” and “mption.”

  22. 22.

    Mption

    April 14, 2007 at 10:40 pm

    Hey! I resemble that remark.

  23. 23.

    Keith

    April 14, 2007 at 11:24 pm

    There’s got to be some strategy behind doing this. Are they counting on the Congress rejecting it as harming the Democrats by showing them weak on terrorism or something? Did they forget the recent FBI NSL blowup?

  24. 24.

    The Disenfranchised Voter

    April 15, 2007 at 12:20 am

    Mark my words, if the Democrats in congress allow these changes to pass I will never again vote for a Democrat.

  25. 25.

    p.lukasiak

    April 15, 2007 at 1:12 am

    There’s got to be some strategy behind doing this. Are they counting on the Congress rejecting it as harming the Democrats by showing them weak on terrorism or something? Did they forget the recent FBI NSL blowup?

    upon reading the full linked article, I’m beginning to think its a bargaining chip, or for pr, not a real proposal. There are a bunch of other reasonable sounding amendments as well as this glaringly bad one. So maybe its just there to be able to say “we compromised with congress”.

    The other thing is that the spying stuff is already going on through the use of National Security Letters which are basically administrative (non-judicial) supoenas. But while the law that authorized the NSLs states that compliance with them is mandatory, there is no penalty in the law for failure to comply. (kinda like the Presidential Records Act. The law says you have to keep all the records, but there is no penalty if you don’t do so.)

    So what the proposal really does is change the mechanism from an administrative supoena with no penalties for non-compliance to a judicially approved (by FISA courts) supoenas that, at the very least, can get you changed with Contempt of Court for failure to comply with them.

    And its also possibly a signal that significant abuses have occurred with NSL’s that will not merely result in lawsuits, but once the abuses are fully brought to light a change in the NSL law itself. Its a pre-emptive move, in other words…. when the scandal hits, the administration will be able to minimize it because the problem was already fixed.

  26. 26.

    jake

    April 15, 2007 at 9:43 am

    OT (?) Abbie Goner has an Op-ed in the Washington Post titled “Nothing Improper.” I guess “Nothing to see here,” would have been too obvious.

    In part because of my own experience, I know the real strength of America. It lies in our Constitution, our people and our collective unyielding commitment to equal opportunity, equal justice, common decency and fairness.

    Pure comedy.

  27. 27.

    Chad N. Freude

    April 15, 2007 at 10:01 am

    IMpure comedy.

    Fixed.

  28. 28.

    The Other Steve

    April 15, 2007 at 10:04 am

    Look. The Goverment would never abuse power granted to them.

    Just trust us.

  29. 29.

    Bob In Pacifica

    April 15, 2007 at 10:05 am

    That’s the way it always is. The rich guys can always get the best stuff to smoke. Probably grows it on the ranch.

  30. 30.

    The Other Steve

    April 15, 2007 at 10:19 am

    William F. Buckley on Imus

    He doesn’t agree with John.

  31. 31.

    Zifnab

    April 15, 2007 at 10:53 am

    [The proposed changes] provide for compelling telecommunications companies and e-mail providers to cooperate with investigations while protecting them from being sued by their subscribers.

    So would this apply to the RNC email servers that have all of Karl Rove’s emails in them? I’m just saying. Some people would consider the outing of a CIA agent during wartime a threat to national security.

    Seriously, could Bush possibly be any more congnitively dissonant? “Everybody needs to turn over their emails for inspection! Except me!” Right on the heels of this 5 million emails gone missing thing? It’s like Bush is getting kickbacks from the Daily Show to write their material for them.

  32. 32.

    Leo

    April 15, 2007 at 11:05 am

    Unfortunately, the retroactive nature of this legislation appears to be constitutional. The 5th amendment doesn’t forbid retroactive legislation as long as it isn’t taxation.

    http://www.law.cornell.edu/anncon/html/amdt5bfrag3_user.html#amdt5b_hd16

    I can’t think of any constitutional attack on this legislation, much as I’d like to. It is clearly within the power of Congress to govern anything that relates interstate communication, including lawsuits against the telecom industry. The law doesn’t deprive anyone of constitutional rights, because the rights in question (privacy, search and seizure, etc) run against the government, not private enterprise. Congress might not be able to get rid of the ability of citizens to sue the government for their rights violations here, because those rights are constitutionally derived. But any rights against the telecom giants are derived from federal or, more likely, state statutes and common law. A specific Congressional enactment would trump any of that.

    Of course, the law is still terrible policy, and I would certainly hope and expect Congress to laugh at the proposal. Just because Congress has the power to be ridiculous and stupid doesn’t mean they should be.

  33. 33.

    Fledermaus

    April 15, 2007 at 1:58 pm

    Wow vastly expanding government spying on citizens and reducing corporate accountability. A two-fer!

  34. 34.

    Pb

    April 15, 2007 at 2:23 pm

    Leo, see here, on ex post facto laws:

    Prohibited by Article I section 9 (applying to federal law) and section 10 (applying to state law) of the U.S. Constitution.

  35. 35.

    ThymeZone

    April 15, 2007 at 2:48 pm

    He (Buckley) doesn’t agree with John.

    Buckley is full of shit. “Decency” my ass.

    All we need now is for the “decency” police to show up and start patrolling the tubes and the waves.

  36. 36.

    chopper

    April 15, 2007 at 2:54 pm

    looks ex post facto to me.

  37. 37.

    Zifnab

    April 15, 2007 at 3:28 pm

    Section 9 and 10 were ment to protect people from getting slapped with laws that weren’t on the books when they violated them.

    For instance, if California re-criminalized medical marjuana tomorrow, they couldn’t make the law encompass people who had been smoking it yesterday.

    However, this is effectively a Congressionally demanded policy change. It limits who can be sued hence-forth and encompasses acts committed before the signing of the bill. If California were to de-criminalize marjuana completely tomorrow, for instance, they could state that anyone who’d been smoking marjuana yesterday should be excempt from prosecution. That’s perfectly legal.

    Of course, this is one giant moot point because Pelosi and Reid will probably give this request one look and file it under “Things the President Asked Us To Do That We Are Too Polite To Laugh At Him For”.

  38. 38.

    Punchy

    April 15, 2007 at 3:54 pm

    looks ex post facto to me

    Suddenly everyone in this joint speaks Latin? Henaniganshay.

  39. 39.

    Pb

    April 15, 2007 at 4:38 pm

    Zifnab,

    Well it goes back at least to Calder v. Bull (and the distinction drawn there between retrospective laws in general and ex post facto laws in particular). I wonder, in a case like this, can you put the genie back in the bottle?

    And I don’t think this is a matter of decriminalizing a previously criminal act — instead, it’s a matter of retroactively denying legal recourse to the victims of a whole class of crimes — perhaps permanently.

  40. 40.

    Leo

    April 15, 2007 at 5:21 pm

    Pb: As you say, Calder v. Bull makes it pretty clear that the Ex Post Facto clause effects only to criminal laws. Pretty hard to imagine a 200+ year old precedent like that getting overturned.

    I think the 5th amendment is the best way to attack this. Calder v. Bull seems to have pretty much put an end to the Ex Post Facto clause, but the retroactive laws have been challenged under the 5th much more often and recently. It might be that it would work.

    Here’s what I think is the most relevant paragraph from the link I posted previously, which constitutes pretty much all I know about the topic:

    “Congressional Power to Abolish Common Law Judicial Actions.— Similarly, it is clearly settled that “[a] person has no property, no vested interest, in any rule of the common law.” It follows, therefore, that Congress in its discretion may abolish common law actions, replacing them with other judicial actions or with administrative remedies at its discretion. There is slight intimation in some of the cases that if Congress does abolish a common law action it must either duplicate the recovery or provide a reasonable substitute remedy. Such a holding seems only remotely likely, but some difficulties may be experienced with respect to legislation that retrospectively affects rights to sue, such as shortening or lengthening statutes of limitation, and the like, although these have typically risen in state contexts. In one interesting decision, the Court did sustain an award of additional compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, made pursuant to a private act of Congress passed after expiration of the period for review of the original award, directing the Commission to review the case and issue a new order, the challenge being made by the employer and insurer.”

  41. 41.

    Rome Again

    April 15, 2007 at 5:33 pm

    All we need now is for the “decency” police to show up and start patrolling the tubes and the waves.

    Isn’t that the plan?

  42. 42.

    Chad N. Freude

    April 15, 2007 at 6:03 pm

    OT, but it looks like the president’s finger was the one on the “Fire Iglesias” button. From the Albuquerque Journal:

    In the spring of 2006, Domenici told Gonzales he wanted Iglesias out.
    Gonzales refused. He told Domenici he would fire Iglesias only on orders from the president.
    At some point after the election last Nov. 6, Domenici called Bush’s senior political adviser, Karl Rove, and told him he wanted Iglesias out and asked Rove to take his request directly to the president.
    Domenici and Bush subsequently had a telephone conversation about the issue.
    The conversation between Bush and Domenici occurred sometime after the election but before the firings of Iglesias and six other U.S. attorneys were announced on Dec. 7.

  43. 43.

    Zifnab

    April 15, 2007 at 6:47 pm

    The only thing that surprises me here is that Bush found time between his epic vacations and photo-ops to get hand in every scandal we unearth. I guess I should be grateful that he spends so much time reading, jogging, and pissing himself on camera over the mean old Demoncrats, or he’d have train-wrecked the country even more with all that extra time.

    I wonder, in a case like this, can you put the genie back in the bottle?

    You can always go the route of challenging the Constitutionality of the legislation that legalized the behavior to begin with. If, for instance, the Republican Congress passed a law stating that henceforth police couldn’t be prosecuted for beating up peace protestors, a lawyer could argue that effectively legalizing police brutality violated a person’s right to freedom of assembly and was itself illegal. Likewise, a law that forbids you to sue the government after it detains you illegally and deprives you of represenation in court could itself be deemed Unconstitutional because it effectively strips you of habeaus corpus and your right to redress wrongdoing.

    Of course, I’m no lawyer so I couldn’t tell you how Constitutional freedoms stack up against your right to sue or the government’s right to adjucate responsibility. But that’s the first avenue that would leap to mind. Effectively claim that the legislation itself was illegal.

  44. 44.

    Pb

    April 15, 2007 at 6:54 pm

    Leo,

    Cato is on your side (and they provide a fair bit of history and references) as well.

  45. 45.

    jake

    April 15, 2007 at 9:22 pm

    it looks like the president’s finger was the one on the “Fire Iglesias” button.

    Mr. Rove, it’s time for your close up.

  46. 46.

    Punchy

    April 15, 2007 at 10:59 pm

    Tim, have you checked on Johnny today? I heard Dub-Vee had wicked flooding, and I just want to make sure his cat is OK. The one he shaved.

  47. 47.

    Rome Again

    April 16, 2007 at 9:52 am

    Mr. Rove, it’s time for your close up.

    Gee, now I’m wondering if I should change my name.

    Rove Again? Hmmmmm! It does have a ring to it.

  48. 48.

    mrmobi

    April 16, 2007 at 11:00 am

    TZ, I don’t think we’re in any danger from the “decency police” in this culture.

    I’m surprised to find myself in agreement with Buckley for the second time in less than a year (the other being his calling “defeat” for our Iraq policy)

    From the link:

    One of his specialties, over the years, was cracks aimed at Jews. It is revealing that these he managed to get away with. Every now and then there was a rebuke, but he stayed on the air. This tells us interesting things about current U.S. culture. One of them is that anti-Semitism is not as mortal as one hoped. Another is that millions of Americans, though they show no evidence of inclining to acts of racial or religious persecution, did not much mind it when Imus broke the basic protocols; it was just a part of his act.

    Standing inches away from the president that night in 1996, Imus said, “Mr. President” — he was parodying the questions asked at presidential news conferences — “we all know you’re a pot-smoking weasel, that you once ate an apple fritter the size of a baby’s head, and that you actually run a 12-minute mile. Could you therefore tell the American people why that thing on your lip looks like a Milk Dud? And if it is a Milk Dud, then I’d like a follow-up.”

    This reminds me that a year ago, Stephen Colbert ambushed the administration with, of all things, satire! It remains one of the funniest and most compelling political events I have ever seen. I’m sure Bush realized he was being savaged, and the look on his face was as pissed off as Clinton’s must have been. It’s doubly funny to imagine the people who hired Colbert being grilled afterward.
    I’m glad Imus is gone, but I’d rather it had been Limbaugh, Coulter or one of the other more genuine “hate police.”

  49. 49.

    Pooh

    April 16, 2007 at 12:27 pm

    For instance, if California re-criminalized medical marjuana tomorrow, they couldn’t make the law encompass people who had been smoking it yesterday.

    Further, the ex post facto clause has never, in my knowledge been held to prevent retroactive de-criminalization of conduct – whether a law legalizing conduct is meant to apply retroactively is sometimes an interesting (in a law dorky sort of way) exercise in statutory interpretation, but in this case, where the intent to decriminalize is clear, yadda yadda yadda.

    Of course, that doesn’t mean that a law essentially authorizing what may or may not be independently unconstitutional actions is constitutional. Of course, that implies a Supreme Court that believes that Constitution protects individual rights, and I’m not convinced that we have that right now…

    /law digression

    back to my doc review…

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