Fascinating post - thank you!

Two issues here:
"Mental distress, mental health or psychological issues accepted as falling under the health of the mother exception" I think there could be (and perhaps are) some detailed definitions as to what constitutes "mental distress" etc. Mental distress, as the words are commonly used, can be as minor as "upset" -- other mental health concerns can be serious and severe and mind-threatening as any life-threatening condition. IF or as long as the barrier is set at the third trimester, it's possible the 'mental' as opposed to 'physcal' part of the exception could be re-studied and some logical, workable distinctions made between "distress" and "mind-threatening" --- I suspect that in those examples pulled out by the pro-life side, there probably are some situations where most people would say "So why didn't you do something about it during the first two trimesters?" I don't know the area well but just some thoughts.

As to viability.... I remember the day Roe v Wade was announced, and explained. While celebrating the extremely important victory, those in the room where I was as it was being discussed looked at one another, uneasy and aware that to a certain extent we had to put blinders on to celebrate the decision ... just as the justices had, in some fashion, to put blinders on to reach the decision.

There is no firm, medical answer to the question of "when does life begin?" It was, even then, an arbitrary line that was drawn that didn't so much divide viable from non-viable as it divided "people will accept" from "it's too much to expect people to accept" It was a rationale rather than a reason ...... and we all knew it.

I think/hope that the focus on "mental distress" exceptions will keep the attention on that solveable (I think) part of the problem. The viability issue is a minefield.

This question show my ignorance (what can I say, I live in the liberal NE where it's not a serious dispute), but since PP v Casey (1992), what has happened in the States? Have any/many/most changed their laws in light of their ability to move from 'third trimester' to 'viability'?

Posted at July 5, 2008 1:12 AM in response to thoughts on Obama's recent statements on abortion

Well, just to wrap things up (if only for myself and anyone who might stumble on this later):

The very last poster, hazmaq, may have answered it best. A very different answer than I was looking for but perhaps *the* answer after all:

"I want some fu**ing public accountability - by at least one mother fu**ing Democrat, for all the abuse Bush has wrought - and I want it done in his face, while he's in office. -------- To allow Bush and Cheney and their friends to walk away, knowing what they did had nothing to do with 'security', will be remembered in history for the single greatest act of cowardice ever shown by the American people."

He (sounds like a he) goes on to say that the telecoms should face the music for "breaking the law" .. but that had been my initial question: Why is immunity so important? I think the answer to that question has to be "no one has any idea" Only destor came up with a notion that, if it played out, would make sense - but that's the only suggestion and it comes after much discussion here and elsewhere. So I have to conclude that no one has any real idea about what will be lost if they get immunity .... OR what would be gained if immunity is defeated.

That, of course, leads to a different question, far more psychological than legal, and I think the answer is this: many people strongly, very strongly, want some "fu**ing public accountability"

And they believe, without much reason to believe, that allowing lawsuits against the telecoms will bring that about. Because they WANT that public accountability so badly, they don't really want to inquire to closely, or be overly skeptical, when it seems there is a way to get it.

In other words, it isn't about Obama at all. His position - to stand firm or let immunity happen - is just a catlyst, a platform if you will, for a lot of people to vent their anger and disgust and desire for vengence about Bush and his lying and spying and what's been done to our country and about all those (esp corporations who also hold power and have not been responsible) who colluded with Bush to bring about this .... ugly devastation we have in our country today, here and abroad.

And I agree -- that public accountability would be wonderful and just and do good things for our conscience and our soul. But, perhaps having lived through Watergate and THAT awful ugliness,
the thing I want more than that is the feeling I got watching Richard Nixon get on the heliocopter: the sheer beauty of the knowledge that he was GONE -- out of power -- could do no more harm.

So while I would enjoy as much as anyong to have Bush be called to account now, while he's still in office (Although if he hasn't been shamed yet, maybe he can't be.), but it is far, far more important, at least to me, to have him OUT of office, along with anyone who thinks like he and Cheyney do and are willing to do the things they do ... and appoint the judges they do. All of which John McCain has said he wants to be (I say that sadly as I'd always respected him.)

I think that this came about because some people are celebrating a bit too early. It may seem a given to some of you, particularly younger ones, that this election is all but over: that Obama is as good as elected already. And if he's the one really in power or going to be soon, then why doesn't he do something right now to hold Bush accountable? We're going to be safe from all the Bush-like mindset, that's been achieved - so now let's go after the bastards!!

Only one problem, of course: it's only June and the election is in November. And we're living in a country that re-elected George W. Bush in 2004.

I can only speak for myself, but I'm not going to let my guard down and indulge in delicious thoughts of accountability or revenge until (God willing) the election is behind us and we KNOW there truly will be a new beginning in January.

So, finally, I have answered my question to myself, the one that started this all: what do I think of Obama in light of his decision not to fight the fight against telecom immunity?

I am very grateful to him. It seems that he is keeping his eye on the goal of being elected, not assuming it's a done deal, not taking his eye off the prize even when literally thousands of his own supporters scream for him to do so. I want a president of good judgment and, as far as I'm concerned, I think he has shown it on this issue.

I wish I had as firm a view about his actions with respect to the rest of the FISA bill, but I don't. He'll never get my blind, thoughtless, emotional worship - heck, no one gets that. But I looked at the issue that I knew I had the ability to understand and I've looked as hard as I know how. And, once again, I've come away thinking "Damn, he's smart" .......... So, he's earned, from me at least, the benefit of the doubt in other areas where I haven't given such a hard look.

Thank you to all who shared your input on this. It's truly appreciated.

Posted at July 4, 2008 11:59 PM in response to Serious question (really): Why is the FISA telecom immunity important?

A fuller (and very belated)response to your very interesting post, Logico.

Agency concept – It could work to sue them if they were actually an agent. Ultimately the governemtn would be liable but you could sue the agent (the agent later sues the principal for indemnification or brings the principal in as a necessary party). I’m rusty in this area but I don’t believe you get an “agency” relationship when one party has the legal power to compel another to do something. If there was a solid legal argument that the telecoms were acting as agents of the goverment, that would make immunity a “Big Deal”. But – look at it this way. Every year IRS says “you have to give me money” and I comply. Don’t think that makes me an agent of the IRS.

(2) Section 109 of Title I of the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 USC § 1809, by engaging in illegal electronic surveillance of plaintiffs’ communications under color of law; — Back to square one: what is it that AT&T allegedly did that violated 50 USC 1809? I may be wrong but I believe that the motions were limited to the issue of “state secrets immunity” defense. SJ for the Administration because it’s their immunity; dismissal of the action against AT&T because their actions were made as agents and their principal was immune. (Doesn’t mean they were agents or even that they will claim to have been so later on in the litigation. It’s a posture that, if the court accepted the immunity argument, would have gotten everyone out of court. And can’t even be seen as an “admission” they were agents because agency is a question of law, not fact.)

Certifications – we’re going on different factual assumptions here - my understanding is that Feingold says the certifications were provided; you’re assuming they were not. But, to go with your position for the moment: “AT%T also has the audacity to argue that it can't even reveal whether it got the appropriate certifications because that's a "state secret. . . . Why won't they merely affirm whether or not they had the proper certifications?” Because to do so in the context of this motion would undercut the (rather ludicrous) argument they are making - that everything done by Bush & Co. in connection with security/surveillance is a ‘state secret’. And if that IS their argument, then giving up any information would be – to take in one more ludicrous step - mean that in providing that information they were improperly disclosing state secrets!!! ------- If the issue before the court has been whether AT&T had received proper documentation, trust me, they would have photocopies of all the certifications on the judge’s bench the next morning.

“Seems as though AT&T and the government protecting each other. Why? "
You got it! At least I think that’s the only reason the telecoms are still in the existing lawsuits – because the government wants the distraction and ‘cover’ of standing beside another defendant who (arguably) didn’t break the law. Why would they cooperate? Because it’s the government and having the government very, very, very grateful to you can be a real blessing; having the government - especially the Bush/Cheyney government!! – angry at you can be a really unpleasant bummer. -------- I’m sure they would be as happy to cooperate with an Obama government (even if they would, rightly, be less frightened about what he might be willing to do if they didn’t cooperate).

“It's foolish to set precedent that assures businesses that no consequences will follow if they help the government do something that may be illegal “ ---- The message sent, the precedent set in a grant of immunity is based on how much that immunity was worth, which takes you back to my initial question. Unless and until there is good reason to believe that the telecoms DID violate the law, there is no implication that law-breakers got off the hook. There could be a perfectly innocent and legitimate reason to give retroactive immunity: because the government wants to be fair to companies that did nothing wrong but got caught up in an illegal program because of the government’s own bad actions. – Okay, so that’s real Pollyanna, but way back when I heard the first reference to immunity for the telecoms, that was my immediate reaction. That’s the standard message that retroactive immunity sends: “Something the government put others in jeopardy simply because they relied on the government – so those others shouldn’t have to pay.” If the government changes a law that makes previously-legal actions suddenly illegal, those who complied with the old statute shouldn’t now be vulnerable under the new one. ------- If telecoms did something because the government assured them it was legal and that they had to, they shouldn’t be vulnerable because the government lied.

I’ve read most of what Feingold and Leahy have said and tried to find the Balkan article (found his web site with lots of articles but didn’t come upon that one); I’m assuming it’s the same tack as the other two have taken and the viewpoint in the Obama quote. — My observations are two-fold: 1) No one is talking very specifically about the details and potential viability of any lawsuit against the telecoms. 2) A lot of the certainty seems to come from the fact that the Administration wants the immunity so very, very badly and so therefore it’s something that we absolutely shouldn’t let them have. And, as indicated above, I’m beginning to wonder about that one. If they didn’t PLAN this distraction, then it sure was a lovely gift to them.

“Please show me where your found documentation or any Senator on the record that they telecoms got the PROPER and LEGAL certification.”

Here’s the full quote from Feingold:
“Under the new FISA bill, H.R. 6304, the immunity outcome is predetermined. A federal district court could review in secret the letters to companies to determine whether ‘substantial evidence’ indicates that they received written requests stating the activity was authorized by the President and determined to be lawful. But information declassified by the Senate Intelligence Committee already indicates that the companies got such written requests – meaning immunity is virtually guaranteed. The plaintiffs could participate in briefing to the court, but only to the extent it does not necessitate the disclosure of classified information, which will seriously impair their ability to participate in a meaningful way.”

I translated this as saying that it wouldn’t do any good to have a federal district court review the letters given to the telecoms if they were only looking at whether they received letters/requests/demands that contained the proper information, because if that’s all they could ask then “immunity is virtually guaranteed” since they got proper requests. ----------------------
Now, you’re absolutely right in that he doesn’t specifically state “AG certification” but if it was as simple to say as “We think telecom immunity is a bad thing because we have reason to believe the telecoms gave access without being served with either a warrant or the requisite AG certification, and therefore they clearly violated the statute” ... wouldn’t you think they would just SAY so????? It doesn’t make sense unless when when he says they all got letter that the request had been “determined to be lawful” that’s referring to the AG certification.

(Now THIS is very puzzling. That statement was at http://feingold.senate.gov/issues_fisafacts.html. But now the page no longer comes up! I know I didn’t dream it because Ohiomeister also quoted it. ??????????? WTF??)

Messy is right!

Posted at July 4, 2008 11:05 PM in response to Serious question (really): Why is the FISA telecom immunity important?

That was in response to dijamo at 3:11 p.m.

Posted at July 4, 2008 9:36 PM in response to Serious question (really): Why is the FISA telecom immunity important?

"Their goal is to prevent the courts from ever ruling on whether the surveillance is legal and from imposing needed restraints"

Or -- was their goal to have everyone looking at the arguably meaningless telecom provision? I could make the argument for this goal more effectively than the one for the goal you state. A lawsuit against the telecoms will only tell you whether what THEY did was legal - if it was, you've found out nothing. The surveillance, it's pretty well accepted, was illegal because of what the government did (or, more accurately, didn't do). THAT's what you want the courts to get at, and suing the telecoms isn't going to do it.

Posted at July 4, 2008 9:32 PM in response to Serious question (really): Why is the FISA telecom immunity important?

Hmmmm .... nose twitching again. If Qwest did that in Feb. 2001 -- and the government never took Qwest to FISA court to force them to do what by law they had to do (if Ben Hocking is right about the lack of requirement for a warrant for the type of information Qwest was asked for) -- then .... I wonder when the gov't stopped going for warrants for the other warrant-required information? Maybe the telecoms (contrary to popular stereotype) were getting restless and uncomfortable and starting to stand up for their customers' rights (hold on - even Ashcroft had *some* principles!) --- so the government changed strategy, went for the "request + AG certification" that the telecoms HAD to honor? As I said, if this sounds like outer space, remember Ashcroft in his hospital room.

Posted at July 4, 2008 9:24 PM in response to Serious question (really): Why is the FISA telecom immunity important?

Oops, sorry - that comment was to mjeffin and before I saw the explanation from ohiomeister. Much appreciated. The law as it was before GWB -- esp as it was before Reagan and GWHB -- was not bad, and there were many, many religious-based groups doing extremely good work that benefits all, esp those who are under-represented among the rich and powerful. I'm sure Obama is aware of that, since it was a group of churchs, I believe, who hired him in Chicago.

Posted at July 4, 2008 9:13 PM in response to Serious question (really): Why is the FISA telecom immunity important?

Thank you for the compliment -- and I, too, would love to see an analysis of the 'faith-based' positions re separation of church and state. (And I can assure you that simply being an attorney doesn't begin to give you a clue. I took on FISA immunity because civil immunity and liability is where I live. I hope someone will accept your invitation.

Posted at July 4, 2008 9:07 PM in response to Serious question (really): Why is the FISA telecom immunity important?

That's a very good decision (although it's really a standard rule of law - but here is knocks out Bush's proposed 'state secrets' exception to that rule). But it takes you back to square one. Even if the judge sees all sort of shocking things "in camera" the first decision he/she has to make is whether it's 'material and relevant' to the case before him/her. If it's not relevant, it can't be disclosed (even if the judge goes home and bangs his head against a wall out of frustration that he couldn't disclose it). --------- That's why it's so very important to know the actual nature of the case that could be brought. (My hypothesized case - something wrong with the type of documents provided - wouldn't lead anywhere. Destor's hypothesized case - something wrong with the content of the documents as compared to the type of information provided - could indeed be a gold mine.

Posted at July 4, 2008 9:01 PM in response to Serious question (really): Why is the FISA telecom immunity important?

Good point about criminal/civil distinctions -- but your comment that talk of criminal trials being a "ruse" ........ Don't you really mean that it's so damn remote that one could ever be successful that it's really a harmful distraction to talk about it as a real option?

If so, then you must understand how I feel about all this talk about civil immunity/liability for the telecoms. Not agree - just understand. In my view (and I was hoping someone would enlighten me) all this talk telecom immunity is just a ruse because there is so little chance that lawsuits against them would lead to anything.

As to discovery revealing anything - that is very much shaped by what is alleged as the violation -- which is why I keep asking what is going to be the basis of those lawsuits it's so important we have.

Posted at July 4, 2008 8:53 PM in response to Serious question (really): Why is the FISA telecom immunity important?