Here we go again.

My take from Greg's "downer" thread last Friday:

I've collaborated with another lawyer on this board, Elizabeth2, to give the reasons why we feel this FISA compromise is not the major crisis some are making it out to be.

The illegal acts involved were actually those of the *government* (Bush administration) not the telecoms, so immunity for the telecoms is simply beside the point. If immunity is defeated and the lawsuits go forward, I’d say there’s about a 90% chance they will be dismissed before there is much opportunity to do discovery, or any chance to probe into the secrets.
Why? Because the telecoms have a very strong defense for THEIR actions: they relied on an apparently lawful order by government officials who had the power to give such an order. In fact, under the law as it existed at the time the gov’t could go to a judge for pre-approval OR direct the records be turned over and then have it retroactively appoved by a judge. So there was no way the telecom could know, at the time they were told to turn over the records, if the order was going to be given approval in the future, even if it didn’t arrive with a warrant. (I believe Qwest was able to make its principled stand - relying on the Nuremburg principles - after it became apparent that the government wasn't getting approval either before or after ... but it's a risky move to make.)
Simple principle: The law does not favor giving private individuals or entities the power to decide on their own what is or isn’t lawful (not until you get to the extreme examples under the Nuremburg doctrine). So if you follow what appears to be a lawful order by your government, then the law protects you. Example: if there’s an accident up ahead and a cop tells you to do something plainly illegal – like drive eastward on the westbound lane – then you’re supposed to do it, not quibble and inquire into his reasons or authority. So if another cop arrests you for doing something that is, in fact, illegal, you have an absolute defense: you were following the orders of someone with apparent authority to give those orders.

So how is allowing citizens to bring probably-losing lawsuits against the telecoms going to prevent the Bush administration, or any other government, from doing just what they did here?

Furthermore, there IS already a remedy, one that takes the case directly to the wrongdoer - the government. 43 USC 1983 [the US Code] is a powerful tool and it makes all of us “private attorneys generals” in enforcing our Constitutional rights. Study some of the civil rights litigation if you doubt its power.

Now it’s true that you won’t get rich even if you win - you probably won’t get enough to pay your attorney unless you can prove specific damages beyond the constitutional violation itself (On the other hand, you won’t get very rich bringing a losing lawsuit against the telecoms either.) But you would get discovery rights, and you would if successful get a declaration that the people actually responsible for this invasion of privacy were acting unconstitutionally.

So why not sue the Bush administration instead of some private third party who has a very solid defense?

I can’t disagree with the fact that probable cause, 4th Amendment etc. are very important and that the Bush administration may have acted as it did to nibble away at such rights or set the precedent that they can be erased in little bits. ------ But we are dealing with people (those currently in power, the young ones on the Supreme Court, and one trying to get into the White House and appoint others to the Supreme Court) who want to go a lot further than chipping away at the implied right to privacy of the 4th Amendment. They want to start right at Article I, ripping away any limitations on the government, even the most honored and ancient.

I’d deal with the FISA situation in a very pragmatic way. Is the bill (the substantive part) better than present law? If yes, work to get it passed; if no, leave it be and concentrate on a battle that will make some real difference. It may well be that the law as it stands is just fine ..... that the real problem is that we’re just dealing with a bunch of hoodlums! ------ Does the bill take away protections that are there in the current law? If not, give it your blessing. If yes, oppose it as much as possible without crippling yourself (time, energy, money, political capital). Because the most important thing is to get the hoodlums out of power. (I don’t know the answer to those questions, by the way - substantive provisions of the proposal vs. current law.) ----- Does the immunity part of the bill really make a difference? Is IT worth the expenditure of that time, energy, money and political capital? I don’t think so. If Obama doesn’t think so either, then he shouldn’t waste time and effort on it, no matter what he said back when this seemed like the biggest threat on the horizon.

If you saw the video of his talk to his Chicago staff after clinching the nomination, you may have been caught at the sense of ...something, not exactly fear but being a bit in awe or overwhelmed ... when he talked about their having to work now, that there’s no other option, it all rests on their shoulders and on his. I bet that heavy responsibility does give you a new kind of vision about which fights are important and which are going to be distractions from the main goal. And, yeah, maybe some of your old promises don’t seem so wise from that vantage point. Think about it – how would you feel if YOU were one solitary person standing between this country and John McCain and the people he would appoint to the Sup. Ct. I suspect it’s pretty damn sobering - and that’s just how Obama looked that day.

No one is having fun because this hornet’s nest has been hit, and it was already clear that immunity was going to be a *big deal* (I'm wondering if it wasn't a big red herring...) So I’m convinced that there was some persuasive reason for their including it. Have no idea what. Maybe the bill itself is an improvement on current law and they feel it’s needed and they couldn’t get the votes without the immunity. ------- Maybe – it’s possible you know – that some felt it is fair to grant retroactive immunity. The telecoms were obeying apparently lawful orders, so should they be sued? There are probably reasonable people who feel that they shouldn’t. Maybe those same people feel that those *giving* the orders should be strung up by their thumbs, but think it’s unfair to make the telecoms the target for everyone’s outrage. ---- Maybe some of them are concerned that because the telecoms will have a very strong, very accepted defense and conclude that a long string of LOSING lawsuits against them would be worse than none at all, would further demoralize people. ---- Maybe they feel like Gerald Ford did, that the important thing is to end this sorry chapter and move forward. Many people who didn’t vote for him because of the pardon later applauded whole-heartedly when he received the Profiles in Courage award for just that act. ---- Maybe they are concerned that all these lawsuits looking into what information was released to whom would just be more invasion of people’s privacy.

I don’t know what the reason(s) were, but there was one, or some. And yes, it would be really nice if they would explain ..... unless there were such a variety of reasons, no explanation would suffice (and would probaly start a brawl). Unless they feel the explanation (“Look, you’d lose every damn one of those lawsuits. It would be futile.”) would be as demoralizing as the invasion of privacy in the first place. I can't praise or condemn the decision to include immunity because I just don't know enough of the relevant facts.

The telecoms didn’t violate our constitutional rights, because only government, not private entities, can do that. The 4th Amendment protects against unreasonable searches and seizures BY THE GOVERNMENT. (If a private party does it, it’s called theft, kidnapping, etc.) If I’m right about this (and civil, specifically governmental, liability is something about which I do know a lot.), then GOVERNMENT violated the law in giving those orders without seeking, before or after, the approval of a judge, but the companies didn’t violate any law by complying with those orders. Those responsible in the Bush Administration should be held accountable criminally, and this FISA bill does not mention or grant immunity, retroactive or not, for any potential criminal actions.

In fact, maybe some of the people who want to grant that immunity want to do it in order to shift attention back to the real wrongdoer: Bush & Co. Don’t sue the companies: they didn’t do anything wrong and you’ll lose. Sue the government in a 1983 action – that’s where the culprit is.

Look, we don’t really care what information was disclosed, and we know what motivated the companies to do the disclosing. What we citizens care about, or should care about, is why, for what reason, the government gave the orders to the telecoms in the first place and what use they made of the information they obtained. It’s the governmental action, not the corporate action, that is the threat and that should be the focus of any inquiry.

It's not a national security matter at all.

If Bush instructed a bunch of thugs to pull a bank heist, the fact that he planned to use the loot to help catch terrorists would be irrelevant.