The Bush Administration is in Vaughn Walker’s courtroom today, trying to convince him to just give the telecoms immunity with no further scrutiny.
But given the questions Judge Walker has posed to the Administration, it looks like it won’t be that easy. For example, there’s this question, which highlights just how nutty this retroactive immunity is:
What exactly has Congress created with § 802 (in Pub L No 110-261, 122 Stat 2467, tit II, § 201 (2008))? It does not appear to be an affirmative defense but rather appears to be a retroactive immunity for completed acts that allegedly violated constitutional rights, but one that can only be activated by the executive branch. Is there any precedent for this type of enactment that is analogous in all of these respects: retroactivity; immunity for constitutional violations; and delegation of broad discretion to the executive branch to determine whether to invoke the provision?
He goes from there to ask several more questions getting at that pesky separation of powers thing. You know–separation of powers, which says that the courts have the ajudicatory function?
In making the certification called for by section 802(a)(5), is the Attorney General performing an adjudicatory function? That is, is he not making a determination that only a court can make?
They are all good questions. And they suggest that Walker is not going to simply roll over and abdicate his Article III function. Which probably means this will be appealed beyond the time when the Bush Administration leaves office.
Which I guess means we ought to be preparing some questions for Eric Holder about FISA at his confirmation hearing.
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Digg this post by EmptyWheel!
ZED?
Yay! One of the three branches doing its’ job!
Please. Many questions. Can we lock up the committee that will be holding his confirmation hearings and put Christy, LHP, bmaz, John Turley and a few others in charge of their curriculum, and not let them out until they get a passing grade?
Bob in HI
Eric better have real good answers on this FISA stuff and the Immunity that it tries to bestow on the TELOCOS!
Oh Happy Day!
Do I dare hope?
as I said over at the wheels house, I wish someone would ask if the telecoms are given ownership of the information they’ve stolen since they have their ‘retro-active immunity”
and the follow up;
“if information has been stolen and a person loses property (IE an invention, manuscript, proprietary contact information), what redress do those who’ve lost that property have since the telecoms are gaining immunity”
that’s what I’d like to see as it seems the only thing right wing nuts understand is someone stealing their property
Sweet. Take THAT, Addington.
Couldn’t the new Executive just not invoke the provisions regarding immunity and let this case have it’s day in Court?
Kabuki or for real? Enquiring minds ….
I would think the telecoms were given immunity, the executive can’t take that away it’s up to the courts
ianal
I think it only fair to point the reader to the thread perris alluded to, over at the Wheel House because there were a number of important contributions by commenters, for example Mary @12, 13, 26 & 37, as well as bmaz, WilliamOckham, et al.
Bob in HI
here’s what I believe cannot possibly pass constitutional muster concerning telecom immunity;
we don’t know who was harmed, how can we possibly award immunity, the person harmed then does not get due process for redress
I think the judiciary can find as a matter of law that the act passed by Congress was unconstitutional.
If the administration disagrees, they can appeal it up the line. That’s what the courts are for (amongst other uses).
Given the end run on the Judiciary committee that Harry Reid and Jello Jay led when the warrantless wiretapping and telecom immunity were being considered, Patrick Leahy and some of his colleagues on the SJC might just be amenable to asking some pointed questions about these subjects.
if obama is a mench then he will not appeal if the laws are found unconstitutional and he will ask the courts entertain appeal if found constitutional
he is supposedly a constitutional lawyer, let’s see if his money is where his degree is
Questions for Holder at his confirmation hearings? Questions other than “who votes aye?”
Not holding my breath.
Doesn’t congress server at the pleasure of the president?
a ray of hope there…
unlike other news today… and we wonder why
Texas Judge Dismisses Indictments Against Cheney & Gonzales
In Texas, a judge has dismissed indictments against Vice President Dick Cheney and former Attorney General Alberto Gonzales for their alleged role in the abuse of prisoners in private prisons in Texas. The indictment had cited Cheney’s investment in Vanguard Group, which owns an interest in private prisons in South Texas. Gonzales was accused of using his position while in office to stop an investigation in 2006 into abuses at one of the privately run prisons.
IANAL but from everything I read, that case was always going to be dismissed. The DA was a bit of a grandstander and there really wasn’t anything there.
I’d like to see Cheney and company go down. But with a valid indictment that actually had rule of law behind it, not someone’s ego and wish to get some national press.
No Crony Left Behind is a well run program!
Ian upstairs on India’s troubles and their response.
Hooray for judicial activism, I mean competence. I am curious about how this will affect those who brought claims against the Telcos including former SF Chronicle reporter (and personal hero) Peter Sussman.
My legal accumen is very limited as to a petitioner’s rights after a case is dismissed with or without prejudice.
The judge did indeed ask good questions, but haven’t we been here before on other topics? I predict the good questions will be followed by virtually no answers, but nothing will happen in return. I sound like the old doofer I am, but I really do remember when we used to be a nation of laws, and when the laws were (mostly) enforced.
I sure hope this judge does the right thing and throws the retroactive immunity out the window. I cannot understand how it can be constitutional.