John Dean: Obama May NOT Give Telecoms A Pass Afterall

[kpete]

Keith Olbermann: "If this gets in through the Senate there's no way to get it out again, is there? I mean, the history of this nation in terms of lost civil liberties is pretty bad about restoring them."

John Dean: "Well I spent a lot of time reading that bill today and it's a very poorly drafted bill. One of the things that is not clear is whether it's not possible later to go after the telecoms for criminal liability. And that's something Obama has said during this campaign he would do - unlike prior Presidents who come in and merely give their predecessor a pass, he said, 'I won't do that.' And that might be why he's just sitting by saying, 'Well, I'm just gonna let this go through but that doesn't mean I'm gonna give the telecom a pass.' I would love it if he gets on the Senate floor and says, 'I'm keeping that option open.'

Olbermann and Dean then discuss the idea of letting the private lawsuits against the telecoms fade away and have someone like Obama or someone else go after the telecoms later on.

Keith Olbermann: In other words, let the private suits drop and get somebody in there to actually use the laws that still exist to prosecute and make the actual statement and maybe throw a few people in jail.

John Dean: Exactly. Exactly. It looks to me as I read this bill and I talk to a number of people in Washington familiar with the bill, and some who are involved in the negotiations, and they say, 'You know, we just didn't think about this issue.' So as it goes to the Senate, maybe Obama's got a shot to take a future look at this thing and not let them have the pass they think they're getting.

more at:
http://www.dailykos.com/storyonly/2008/6/23/0035/51973/576/540462

[katandmoon]

1. And monkeys MAY fly out of my ass

[spanone]

3. if it 'goes away' it will stay away

[jtrockville]

12. That's right. The new administration will want to look forward,

and I don't blame the new administration. I DO blame those in the current adminstration/congress. They've SWORN to uphold the Constitution.

SHAME on them.

[Leopolds Ghost]

31. So you want to look forward and not repeal or filibuster FISA?

How forward-looking.

[Junkdrawer]

2. BULLSHIT. The private lawsuits are there because neither Congress nor the President...

is interested in investigating this.

And so far, the private lawsuits have uncovered the fact that the spying began 6 months before 9/11.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=3497613&mesg_id=3497613

So now we're being told "OK, private citizens, we're going to take away your right to sue but you have our promise that we'll investigate this."

If you want to investigate this, go ahead. The private lawsuits won't stop you.

[robinlynne]

10. Thank-you Junk!

[Hydra]

17. Good post

even people here forget that this started Pre-9/11, and that Qwest refused to go along with it, citing the non-existent legality of it. They subsequently lost contracts with the NSA, while their competitors lapped it up and benefited accordingly.

The telecoms made money helping GWB break the law...why are we even HAVING this discussion???

[EFerrari]

19. Yep. And while I agree with you, this isn't a fight Obama can win

and I hope he manages to stay out of it.

[Junkdrawer]

21. But it does give one pause on the limitations of the "Change" Obama can bring....

If the leadership of his own party will resist change....

[EFerrari]

22. He's still running, though. I think what we will learn about him

in this situation is how well he picks his fights and how well he turns a crisis into an opportunity.

We already know what the leadership is, don't we?

[truedelphi]

28. Thank U for the sanity and common sense of your reply n/t

[The_Casual_Observer]

4. Then again, he may not.

[slipslidingaway]

5. John Dean also, ' It really does hurt our Constitution'

To start off, John Dean unequivocally states that the FISA bill is damaging to the Fourth Amendment of the Constitution.

John Dean: "Well I think you've got to give one to the terrorists for a notch on our Fourth Amendment. They really did some damage today, uh, in this, so-called compromise. Contrary to what the speaker (Pelosi) said, it really does hurt the Constitution so, uh, it's very troubling and it's not a good day, for civil liberties particularly."

[dixiegrrrrl]

20. " the terrorists" have names, Dean !!!!!

Bush and Cheney and the signers of the PNAC, the Neocons who support them, the Democrats who supports them, ad nauseum.

We continue to make a serious serious mistake by acting as if there is any
difference. They are one and the same.

Insurgents: what the big invading army with all the firepower calls the little defending army with less firepower.

[slipslidingaway]

23. Also I would look to the A Clean Break document n/t

[stillcool]

6. I'm sure the Senate ..

can cook up a way where Obama can vote no, and still have the bill pass. Isn't that what politics is about?

[Junkdrawer]

8. Chris Dodd even did a "filibuster" and it passed...

There's no end to the theatric possibilities.

The trick is to segregate your audience.

[Larkspur]

7. Obama will claim that there are more important issues than civil rights

and telecom immunity. Obama will find a way to not prosecute the telecoms.

[Junkdrawer]

9. Apparently, too many powerful Democrats were involved with the spying....

This bill is all about putting a lid on any and all investigations.

[Phred42]

11. Obama ahas said he's against Immunity bot FOR the bill itself

Even though it will kill the 4th amendment

[Leopolds Ghost]

34. EXACTLY, and you can't prosecute something that you want them to be doing

Just because they did it before YOU (Obama) voted to legalize it.

That's how Bill Clinton immunized the Banks against being prosecuted
for violating New Deal Banking Anti-Trust regulations that were since
overturned by the Gramm Energy & Banking Deregulation Acts

(which Clinton supported, people!!!!!!)

[KharmaTrain]

13. Does The Effect Civil Litigation?

I've asked this question and tried to look for the answer the past few days and haven't been able to come up with any answer. Maybe someone around here can find out.

This bill only appears to immuninize the Telcoms from Criminal litigation, but it doesn't appear to specify if those claimants can't do a class action suit against the Telcoms. While the heads of these companies may not spend jail time, it may be possible for these litigants to get some substantial cash damages.

[daa]

14. It ends all lawsuits. nt

[Hydra]

18. I haven't read the bill yet

But what I've read seems to suggest that if the Attorney General sends a letter to the Judge, the case is dismissed. No questions, and the plaintiff is not allowed to read the contents of the letter.

Why wouldn't that work in civil lawsuits?

[KharmaTrain]

24. Civil Laws Have Different Standards Than Criminal

For example, while Clinton couldn't have been sued criminally for the Paula Jones fiasco, the courts upheld that he could be held civilly liable that opened the door to the discovery that led to the "is is". The "perjury" was in the discovery of that civil case cause he couldn't be gone after in a criminal matter.

Again...from what I've read of this bill it only addresses the criminality...thus the immunity, it doesn't appear to address the civil side...where money, not jail time would be the penalty. Maybe a legal mind can help out with this one.

Cheers...

[Hydra]

25. We'll need a deeper reading then

I found a PDF, but it was 114 pages...I could be working on that all afternoon if I wanted to do it correctly. These is the comments from the peanut gallery, though:

The compromise bill would have a federal district court review certifications from the attorney general saying the telecommunications companies received presidential orders telling them wiretaps were needed to detect or prevent a terrorist attack. If the paperwork is in order, the judge would dismiss the lawsuit.

Rep. Roy Blunt of Missouri, the second-ranking Republican, predicted all the cases would go away.

"The lawsuits will be dismissed," he said.

http://ap.google.com/article/ALeqM5hJKgeE0Z-SivATjok-utYBdh9wDwD91DBHP81

Everything I've heard about this bill suggests that is blanket approval for the domestic spying with only token safeguards which are unlikely to be effective.

No wonder Bush had his trademark smirk. Speakers for the WH claimed that they never dreamed they'd get this much.

[KharmaTrain]

26. A Good Lawyer Should Challenge This...

In some of the threads I've been reading on this the past few days, it appears this bill is very vague and poorly written. It's definitions of immunity are broad and it may create new challenges. The big question is how far "executive privilidge" applies to this law...I imagine there are some sharp lawyers out there finding plenty of loopholes in this flawed violation of the 4th ammendment.

Cheers...

[dixiegrrrrl]

29. Which Federal Court?

Remember, Cheney and Addison made sure their judges were on all the key Federal benches.
Which is the whole point.
There will not be a Federal judge who can decide to allow suits against any members of the regime.

The telecoms wrote the bill !!!
Just like the oil companies wrote the Iraq Oil bill.
Just like big Pharma writes the FDA rules and bills.

The only difference between government today and government of 30-40-50 years ago is the Bush regime has stopped pretending it is are playing by the rules.
In fact, they took the gloves completely off about 30 seconds after they stole the 2006 elections.

The only issue from here forward is for individuals to decide how and when they can accept the reality of where we are.
Until then, we can't do anything besides complain and rant.

******NOTICE:
Due to Presidential Executive Orders, the National Security Agency may have read this posting or e-mail, without warning, warrant, or notice. They may do this without any judicial or legislative oversight. You have no recourse nor protection, not even impeachment.

[Hydra]

30. You've got it nailed

Because of my studies of MK-Ultra, I can't call the spying a surprise. As you pointed out though, there used to be the official rules and the unofficial ones. The unofficial rules are now becoming the official ones, and not too much protesting happening.

I hate being witness to evil.

[Crabby Appleton]

27. The bill immunizes only against civil action, with certain qualifications

TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

SEC. 201. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), as amended by section 101, is further amended by adding at the end the following new title:

`TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

`SEC. 801. DEFINITIONS.

`In this title:

`(1) ASSISTANCE- The term `assistance' means the provision of, or the provision of access to, information (including communication contents, communications records, or other information relating to a customer or communication), facilities, or another form of assistance.

`(2) CIVIL ACTION- The term `civil action' includes a covered civil action.

`(3) CONGRESSIONAL INTELLIGENCE COMMITTEES- The term `congressional intelligence committees' means--

`(A) the Select Committee on Intelligence of the Senate; and

`(B) the Permanent Select Committee on Intelligence of the House of Representatives.

`(4) CONTENTS- The term `contents' has the meaning given that term in section 101(n).

`(5) COVERED CIVIL ACTION- The term `covered civil action' means a civil action filed in a Federal or State court that--

`(A) alleges that an electronic communication service provider furnished assistance to an element of the intelligence community; and

`(B) seeks monetary or other relief from the electronic communication service provider related to the provision of such assistance.

`(6) ELECTRONIC COMMUNICATION SERVICE PROVIDER- The term `electronic communication service provider' means--

`(A) a telecommunications carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);

`(B) a provider of electronic communication service, as that term is defined in section 2510 of title 18, United States Code;

`(C) a provider of a remote computing service, as that term is defined in section 2711 of title 18, United States Code;

`(D) any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored;

`(E) a parent, subsidiary, affiliate, successor, or assignee of an entity described in subparagraph (A), (B), (C), or (D); or

`(F) an officer, employee, or agent of an entity described in subparagraph (A), (B), (C), (D), or (E).

`(7) INTELLIGENCE COMMUNITY- The term `intelligence community' has the meaning given the term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

`(8) PERSON- The term `person' means--

`(A) an electronic communication service provider; or

`(B) a landlord, custodian, or other person who may be authorized or required to furnish assistance pursuant to--

`(i) an order of the court established under section 103(a) directing such assistance;

`(ii) a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code; or

`(iii) a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h).

`(9) STATE- The term `State' means any State, political subdivision of a State, the Commonwealth of Puerto Rico, the District of Columbia, and any territory or possession of the United States, and includes any officer, public utility commission, or other body authorized to regulate an electronic communication service provider.

`SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.

`(a) Requirement for Certification- Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that--

`(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;

`(2) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;

`(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h) directing such assistance;

`(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was--

`(A) in connection with an intelligence activity involving communications that was--

`(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and

`(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and

`(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was--

`(i) authorized by the President; and

`(ii) determined to be lawful; or

`(5) the person did not provide the alleged assistance.

`(b) Judicial Review-

`(1) REVIEW OF CERTIFICATIONS- A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.

`(2) SUPPLEMENTAL MATERIALS- In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).

`(c) Limitations on Disclosure- If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) or the supplemental materials provided pursuant to subsection (b) or (d) would harm the national security of the United States, the court shall--

`(1) review such certification and the supplemental materials in camera and ex parte; and

`(2) limit any public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification.

`(d) Role of the Parties- Any plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party. To the extent that classified information is relevant to the proceeding or would be revealed in the determination of an issue, the court shall review such information in camera and ex parte, and shall issue any part of the court's written order that would reveal classified information in camera and ex parte and maintain such part under seal.

`(e) Nondelegation- The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or the Deputy Attorney General.

`(f) Appeal- The courts of appeals shall have jurisdiction of appeals from interlocutory orders of the district courts of the United States granting or denying a motion to dismiss or for summary judgment under this section.

`(g) Removal- A civil action against a person for providing assistance to an element of the intelligence community that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.

`(h) Relationship to Other Laws- Nothing in this section shall be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.

`(i) Applicability- This section shall apply to a civil action pending on or filed after the date of the enactment of the FISA Amendments Act of 2008.

`SEC. 803. PREEMPTION.

`(a) In General- No State shall have authority to--

`(1) conduct an investigation into an electronic communication service provider's alleged assistance to an element of the intelligence community;

`(2) require through regulation or any other means the disclosure of information about an electronic communication service provider's alleged assistance to an element of the intelligence community;

`(3) impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or

`(4) commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.

`(b) Suits by the United States- The United States may bring suit to enforce the provisions of this section.

`(c) Jurisdiction- The district courts of the United States shall have jurisdiction over any civil action brought by the United States to enforce the provisions of this section.

`(d) Application- This section shall apply to any investigation, action, or proceeding that is pending on or commenced after the date of the enactment of the FISA Amendments Act of 2008.

`SEC. 804. REPORTING.

`(a) Semiannual Report- Not less frequently than once every 6 months, the Attorney General shall, in a manner consistent with national security, the Rules of the House of Representatives, the Standing Rules of the Senate, and Senate Resolution 400 of the 94th Congress or any successor Senate resolution, fully inform the congressional intelligence committees, the Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives concerning the implementation of this title.

`(b) Content- Each report made under subsection (a) shall include--

`(1) any certifications made under section 802;

`(2) a description of the judicial review of the certifications made under section 802; and

`(3) any actions taken to enforce the provisions of section 803.'.

snip.....

[Imagevision]

15. eVEN IF OBAMA VOTED AGAINST IT NOW - IT WOULD STILL PASS...

[lonestarnot]

33. Not if there is a filibuster.

[jgraz]

16. Dean's interview was pure Obama fanwanking

Obama is not only failing to lead, he's treating his supporters like children with this whole "I'm just one Senator" bullshit. This tells me that, at least on this issue, we are not going to get an honest response from the Obama campaign.

[Leopolds Ghost]

32. "Make the statement, throw a few people in jail" for actions your own bill legalized.

How cynical.

"Your own bill" = the bill Obama currently supports, supposedly