Thank you so much for your response. It was OT to the telecom issue and I know that we are most concerned right now with the current issues like FISA and SCHIP but I have been following this Phase II stuff with great interest. I believe the Phase II Report, if it were to come out, would be one more piece of evidence of impeachable offenses.

One other little tidbit from the Intelligence website:
FOR IMMEDIATE RELEASE
May 25, 2007

ROCKEFELLER UNVEILS PHASE II REPORT ON “PREWAR INTELLIGENCE ASSESSMENTS ON POSTWAR IRAQ”

Linky here:

http://www.senate.gov/~rockefe…..52507.html

I want the next three parts. Next time I see a thread on this subject I will try to put in the several links I have to the various reports. I usually just lurk as I see so many people with so much more knowledge than I have. You are one of my heroes as well as Jane, Christy, Marcy, Swopa, Pach, TRex, etc… Firedoglake is just the best!

Christy (or other lawyer),

Please explain how the serious/adult/politicians can be arguing over a retroactive immunity law. Article 1, Section 9 of the US Constitution states: “No Bill of Attainder or ex post facto Law shall be passed.” link: http://www.usconstitution.net/xconst_A1Sec9.html

I mean, is it just a given that since this is related to the GWOT, we can ignore the Constitution? Seriously, why isn’t anyone (Fiengold, someone) bringing this up?

Immunity is an act of forgiveness. Under the Constitution, act of immunity, both backward (retroactive) and forward (prospective) are perfectly kosher, legal, etc.

What is banned (the Ex Post Facto) is making something a crime after the fact, when a person could not possibly have known you would make it a crime in the future.

For example, if Cheney declares martial law, he can make it illegal to be a Democrat (i.e. terrorist sympathizer). What he cannot do is make being a Democrat BEFORE he declared martial law to be a crime.

Bills of Attainder are like arrest warrants. Same thing.

The link worked great. Hope you will post this important information in a more current thread as well.

Here’s a little something from the Congressional Record Sept. 2006 that may help.

http://www.fas.org/irp/congres…..90806.html

I don’t know how to attach a link — hope this works.

Right.. which is why I really think this immunity won’t pass constitutional muster..
sadly, the ex post facto provision doesnt help us, as past caselaw has determined that this applies only to criminal offenses, not civil claims. However, I don’t think the 4th amendment would have any meaning if law enforcement could hire a civilian locksmith to break into your house, then pass a law that says you couldnt sue them for that constitutional violation. this seems almost analogous to what they are proposing here, which i why i beleive that this immunity is constitionally unsound..

Although I’m not a lawyer I do have some legal knowledge, and looking over the
immunity bill here: (the immunity provision starts on page 44)

http://intelligence.senate.gov/071019/fisa.pdf

I notice it says that the AG certification required to dismiss the claims will be reviewed using the “abuse of discretion” standard… Can any legal scholars help me out here.. are they saying that the judges have to decide whether the attorney general abused his discretion in making the certification? If so, isnt this a clear violation of the separation of powers by allowing executive branch officers to adjudicate the legality of an act? And even so, doesnt this prevent total immunity by allowing a judge to keep the case in play if they determine that the AG abused his discretion by claiming the acts being litigated were legal?

It seems to me that all this law does is codify the judicial construct of “state secrets” into law. It seems that if the state secrets privledge fails, this does too. Any legal-ese folks care to weigh in on this…?

Mark~ You’d have a point except that the FISA law doesn’t allow domestic spying at all without a normal warrant. FISA only deals with communications from “foreign” to “foreign” , and “foreign-to-domestic” communicfations. The latter require a warrant, but these can be 72 hours pos hoc in the case of an emergency. That provision doesn’t at all deal with domestic communications. These require warrants…obtained by a judge in advance, stipulated what communications are to be seized and laying out the evidence for suspicfion that a crime has been committed.

The WH brought forward the FISA revision because they claimed that a FISA judge had disallowed the investigation of foreign-to-foreign communications through US “switching points”. No one thought that this was an unreasonable revision…and most thought the Government could have overruled that objection if they appealed.

But then Administration insisted on a series of other REVISIONS unrelated to the judges decision. This included “basket warrants” (actually Administrative Subpoenas…which are broad orders for information on unknown subjects and persons without judicial review at any time), and the immunity clauses.

The Telecoms have presented some court documents suggesting what the Administration wanted was not merely documents related to calls from foreign sources to domestic numbers (this would be acceptable under FISA law if a warrant was obtained, in some cases post hoc)

…but the request also demanded records of all calls that the domestic recipient received/made. That would include domestic-domestic communications, and require a TRUE search warrant presented in advance before a judge.

The Telecoms apparently told the Administration that they didn’t have these “community of interest” records. In other words, they had records of calls, but not linked with secondary calls.

So all the government would need to do is to then request a second set of documents using the numbers provided on the first occasion. And the Telecoms seemed to be willing to comply.

That’s in direct violation of the Telecommunications Act and other Record Privacy laws which prevent the Telecoms from providing these records without a search warrant. It doesn’t matter what the gov’t tells them. It’s illegal. That’s why they want IMMUNITY!

Someone wrote on TNH that there was a precedent on this kind of immunity and it’s prohibited. However, they gave immunity to Oliver North for testifying to Congress. It seems there are some contradictions.

One can Constitutionally be provided immunity for testimony in Congress regarding one’s acts, criminal or otherwise.

If one lies ton Congress that immunity ends.

It only applies to information provided to Congress. That INFORMATION cannot be used to prosecute the individual in court, UNLESS the prosecutors obtained it independently from other sources.

Congressional immunity does NOT grant immunity from prosecution for illegal acts…just the testimony being used in that prosecution.

The Telcoms have not openly testified about their acts in Congress at all. Congress is completely in the dark about what they did in spying on Americans. They have no idea on whom was targetted, what sort of nformation was provided, or how it was used. Nada!

If these Telcoms acted as “whistleblowers” then there might be some merit in offering the immunity. But they even lied about doing this sort of activity at all back in May. They deceived the public and Congress.

Still these morons in Congress want to give them FULL IMMUNITY for illegal ACTS in the past and future?

This should not be a close issue for Democrats, and certainly not for someone as independently wealthy and long-ensconced in his seat as Jay Rockefeller. He needs no money; he needs no added domestic support for his re-election (though he may just have made that necessary). But having acquiesced in allowing one set of corporate supporters to top his state’s mountains, he’s now willing to allow another set to top the Constitution.

Democrats, it seems, must remake their party from top to bottom. Mr. Lieberman is gone; Ms. Feinstein and Mr. Rockefeller need to follow.

There about 40 decent (though not perfect) Democrats in the Senate. That’s about 80% of them. Probably about the same number in the House.

But what these folks have to do is grab their leadership by the scrotum and demand that they stop compromising with the Pugs, and PUNISH the “Quislings” that are blocking the changes needed in this country.

… said Wendy Morigi, Rockefeller’s spokeswoman….”The telephone companies were asked to do something,” she said. “They were told it was legal and they complied.”

So if a corrupt government approaches someone and tells them to undertake an obviously illegal and UnConstitutional act (say commit an assassination against a political candidate), and that person does it, then Congress should.

1) Make the act LEGAL
2) Absolutely absolve the folks who did it, both within and outside the government
3) Just tell the public to close their eyes about what happened
4) Provide immunity to these individuals of any illegal activities in the future as long as the corrupt government officials say “it’s legal”.

The bottom line about all of this is that the Administration went to Telcos and asked them to spy on American citizens without a warrant…it was 6 months prior to 9/11. Some of the Telcos went along with it and some did not. The ones that did , complied with an Administration that was committing a violation of the Contitution and the FISA law.

Here you’re making a very clear point of importance. It was the administration that was violating the law. What law(s) was(were) the telcoms violating?

All those complicit in these activities need to be held accountable. Rockefeller knew and said nothing even though he took an oath to uphold the Constitution and protect us from enemies within.

An Administration that spies on its own citizens (who are their bosses) is acting as an enemy of the people.

Someone wrote on TNH that there was a precedent on this kind of immunity and it’s prohibited. However, they gave immunity to Oliver North for testifying to Congress. It seems there are some contradictions.

Do the telcoms deserve immunity. To me it seems they were doing what was demanded and trying to serve their country in a great time of need. Think of this, even the FISA law allows the gov’t. to demand such spying without the warrant present, upon demand that the gov’t. get it later (I think it was within 72 hrs.). So, in those circumstances, how can you say the telcoms did wrong? How could they know the gov’t. wouldn’t produce a valid warrant within a couple of days?

Even if they spied, what is the law they were violating? The gov’t. is obviously prohibited from spying, but what’s the law against the corp. doing it? I’m certain one exists.

It’s pretty confusing when the Bush people go off the rails (all the time) and the laws are subjected to bizarre tests.

Now, if Congress can’t give immunity and the court cases go ahead (as seems obvious), then how in those proceedings would immunity possibly come up again?

Is there any way they could win immunity in the course of such civil litigation, or would it be criminal?

Lawyers will definitely earn their pay on all sides of this.