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There are several dozen alleged illegal wiretapping cases in the courts right now at various stages of adjudication, with Telecoms named as defendants. Can Congress pass a law that would retroactively shield these defendants from prosecution after the courts have already recognized the validity of their cases? I realize that the Telecom immunity proponents are saying that this argument is immaterial because the Telecoms “may have” performed illegal activities, but their actions were ultimately made “legal” by the PAA that was passed last August.

But do we know that to be true? According to recent whistleblower testimony, it appears that the earlier Telecom wiretapping activities may have gone way beyond anything authorized in the PAA. Only the courts can make that determination.

On it’s face, the Telecom retroactive immunity provision in the proposed legislation appears to be unconstitutional. Do the courts have any recourse should this legislation pass? Or are they supposed to throw these cases out simply because the executive and legislative branches of government have “retroactively” told them to do so?

Your thoughts?

deru kugi wa utareru, na?

I can count on you for good memory (mine is gone).

Now the last remaining obstacle for the immunization forces to clear is the senate/house conference.

I know this sounds simplistic (and it is), but if the telcos did nothing illegal-then why do they need immunity? And if they did do something illegal-then why are we granting them immunity?

DW

http://writ.news.findlaw.com/sebok/20080129.html

Is It Constitutional for the Senate to Retroactively Immunize From Civil Liability the Telecoms That Provided the Government with Information About Customers’ Communications?
By ANTHONY J. SEBOK

Comes the the Congress to the rescue, the civil actions are foreclosed, and if the House conference signs off on the immunity, we will probably have to wait 150 years or so to find out what happened and is happening still.

The next constitutional amendment really should be about secrecy and openness……..

As it stands now, there is good reason to believe that much of the phone traffic, domestic and international alike, originating or terminating on the West Coast was subject to bulk collection.

This is truly a stunning and mind-bendingly outrageous lawlessness on the part of both the telcos concerned and the Executive. But very soon we will have a nice ex-post facto legalization and we can all stop worrying our little heads about the 4th Amendment and such outdated abstractions.

http://writ.news.findlaw.com/sebok/20080129.html

As much as I would like to, I can’t sign on to the theory put here.

An interesting argument has been made elsewhere (Maybe Patty C remembers) that the retroactive immunity in the present bill vis a vis the 40 active lawsuits against the telecoms, represents a violation of the Takings Clause…..

You haven’t been following our discussion.

The memories of the Nixon Era still carry a lot of emotional baggage.
The Church Committee findings and FISA were the immediate reaction, but a generation of disillusioned folks continue to rail against the the intelligence community.

It’s a healthy thing to be suspicious of the erosion of civil liberties by agencies of government, but it’s unhealthy to presume guilty action on the part of civil servants. Like all citizens they’re ultimately subject to US laws. Like all citizens here, they should have some benefit of doubt. So while it may be a good informal policy to question and challenge intelligence reforms, make sure the motivation isn’t just emotion. Prejudice makes for bad intelligence, and bad government. Should prejudice guide examination of FISA?

Dodd: The Rule of Law Abandoned, “Dark Day” in the Senate
February 12, 2008

http://dodd.senate.gov/index.php?q=node/4267

“…in this huge fabric of lawlessness, it was the closest thread to grab. I believed that if we grabbed hold and pulled, it would begin to unravel…”

Senator Dodd made clear his intentions to move the fight to the expected conference agreement between the House and Senate negotiators. The House previously passed a FISA bill that does not contain retroactive immunity and Dodd said he would use whatever tools were available to him, including forcing a cloture vote and taking to the Senate floor to implore his colleagues to stand with him, to try to stop a conference report that retains the retroactive immunity provision.

“…I have fought so long against retroactive immunity because, in this huge fabric of lawlessness, it was the closest thread to grab. I believed that if we grabbed hold and pulled, it would begin to unravel.

That hasn’t happened, Mr. President. But if we believe that each assault against the rule of law was an accident, that each was isolated, we’re deluding ourselves. If the past is any guide, there will be another one. And hope, as they say, springs eternal. I hope we will stand up then.

And perhaps we’ll have the chance to do so very soon. As you know, the House of Representatives has passed a version of this bill without retroactive immunity. It will be the job of the House-Senate conference committee to reconcile the two versions of the bill. And before I stand down, I want to implore the members of that committee, in the strongest terms I can find, to strip retroactive immunity from this bill once and for all…

Maybe the reason Al Gore refuses to endorse neither Hillary nor Barack
is that he IS thinking of jumping in – as an “Independent”.

He could have his pick of possible running mates.

Endless protection.