Tuesday, March 04, 2008

Wiretap "Compromise" in Works - Huzzah!

Ooh a compromise. Who can predict where this is heading?

The Washington Post reports that a wiretap compromise in forthcoming -- but for the life of me I can't figure out what the compromise actually is. Democrats are preparing to go along with the administration and grant amensty to telecoms while Republicans don't move an inch. That's compromise folks.

It's not hyperbole to say that for much of the beltway media words like "compromise" and "bipartisanship" have become entirely divorced from their commonly understood meanings. As David Broder made clear compromise and bipartsanship occur when and only when Democrats drop all pretense of opposition and do exactly what the least popular President in history asks.

The specific absurdity here is that the conflict is between people who seek to uphold the law and those who seek to undermine it, and the "compromise" is to wholly excuse law breaking.

A key congressional aide said that the issue is one that must be reviewed carefully, and a balance must be struck between appropriate court review and avoiding "protracted litigation."

Don't do the crime if you can't do the crime? This "key congressional aide" is arguing that a balance must be struck between enforcing the law and the rights of criminals to not be inconvenienced, let alone found guilty.

One has to wonder where else we can apply this brilliant logic. On one hand tax evasion is illegal but on the other hand fining tax evaders makes them frowny. Murder is illegal but that should be carefully balanced against the pain and suffering caused by jail time criminal prosecution.

It's amazing how few Democrats are willing to stand up and say "why are we comprising on following the law? Let's just follow it, end of discussion."


Carl said...

Your post contains two errors:

1) It assumes your conclusion that Presidentially-directed warrantless wiretapping of foreign intel national security information is unlawful. The Administration argues otherwise and the Supreme Court specifically has reserved the question. See United States v. United States District Court, 407 U.S. 297, 308 (1972) ("the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."); id. at 321-22 ("this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents."). Before castigating compromise as violating the law, you should consider the actual arguments.

2) Especially in the absence of SCOTUS precedent, you don't address the telcos' argument:

"that the government is the expert on the lawfulness of wiretapping and so telcos were entitled to rely on the government's assurances. As liberal lawyer/writer Stuart Taylor says, 'Courts have for centuries seen such a good-faith belief as grounds for immunizing from lawsuits private parties that heed government officials' requests for help in protecting public safety, especially in emergencies.'"

Your rejection of compromise merely makes the telcos' point--that many opposed to the Administration's wiretap policy will pursue civil suits against the telcos as an avenue for discovery of details the President refuses to release, making telcos innocent bystanders in a political battle.

Margalis said...

Carl, if what the telcos did was legal why do they need immunity? Why should we abandon the standard legal process? And why, if the telcos acted in good faith, can't they argue that in court?

It's certainly possible the telcos could make a good case in court and be found not guilty. So let them do that.

I reject compromise in favor of following established legal practices, using the justice system the way it was intended and honoring the separation of powers between the three branches of government.

If you are going to argue that we should compromise on (AKA wholly abandon) those bedrocks of US government you need a much better argument than "it was probably legal anyway!"

I'm not arguing that the telcoms should be found guilty; I'm arguing that like anyone else accused of breaking the law they should go through the standard process.

We don't use that process because we assume people are guilty, we use that process to *determine* guilt. My position doesn't require assumption either way, while yours is predicated on the assumption of innocence.

Perhaps you could enumerate all the entities you believe should enjoy an alternate justice system?

Carl said...

1) You claim fealty to established legal practices of three branches, but then elide one of those branches' source of power. The Administration is relying on authority granted to the Executive in Article II. If this argument is upheld, nothing in Article I gives Congress the ability to forbid it. That's the proper separation of powers issue, which you've ignored.

2) The policy rationale for telco immunity is independent of the President's argument on Article II. The Administration says the TSP was legal. The telcos say they relied on the Administration's interpretation of the law. That should be plenty ("good-faith belief as grounds for immunizing from lawsuits private parties that heed government officials' requests for help in protecting public safety, especially in emergencies.").

If the President's reading of Article II is right, the TSP was constitutional and the telcos not liable. Were the President's argument found by SCOTUS to be wrong, a good faith belief in reasonable government assurances in an emergency is enough to make telcos not liable either. Because the telcos can't be liable regardless of the final scope of Article II, immunizing telcos now makes sense--there's literally no "case or controversy."

3) However, your plan invokes pre- and trial process, at very high costs of court and legal fees. If immunity is the "only" answer, then legislating immunity now saves judicial and societal resources. The question isn't why not spend the money, it's why should tax money (for government and ultimately telco defendants) be spent on a process that is certain to raise telco insurance rates (the costs of which will be reflected in your phone bill increases)?

Margalis said...

If there is "no case or controversy" why are there in fact plenty of actual cases that haven't been thrown out of court? Again you are arguing that telcos are innocent. Great, argue it in front of a judge. I'm sure they'd love to hear all about your Article II theories. (What, no AUMF?)

"However, your plan invokes pre- and trial process, at very high costs of court and legal fees.
The question isn't why not spend the money, it's why should tax money (for government and ultimately telco defendants) be spent on a process that is certain to raise telco insurance rates?"

Why enforce the law against corporations? That's your question laid bare.

Asking "hey, why should we bother with the justice system?" is not a valid question, nor is there some sort of problem here that warrants special intervention.

I just got a parking ticket. Can you write a few blog posts about how me going to court is a waste of taxpayer resources and I should be immunized by Congress? Does it help if I say I work at a company and I'll pass my legal bills onto consumers in the form of product markups?

Why don't we just make all corporate crime legal? Why that would save tons of resources! Better yet, let's just not have laws at all. Imagine the incredible savings!

I'd love to take credit for it but the justice system is hardly "my plan."

Your plan is literally to judge guilt or innocence first, then go to court second. You have it backwards.

Margalis said...

Also, since you are willing to declare people innocent without going through any actual process to determine guilt, I assume you are also willing to declare people guilty and similary skip the determination phase?

Who should Congress put in jail without trial? Let's make a list! Lefties and nutroots, for the crime of being gauche? Sounds like a plan we can all get behind.

Carl said...

>If there is "no case or >controversy" why are there in >fact plenty of actual cases that >haven't been thrown out of court? >Again you are arguing that telcos >are innocent. Great, argue it in >front of a judge. I'm sure they'd >love to hear all about your >Article II theories.

Exactly--why start dozens of cases with potentially un-qualified plaintiffs, where either the law was not broken or the telcos had qualified immunity?

>Also, since you are willing to >declare people innocent without >going through any actual process >to determine guilt,

No, this analysis is relevant where relief may be impossible. If plaintiffs have standing and relief is possible, only a trial in a genuine case with lawful and resolving relief can assess guilt.

And, again, you minimize the fact that no circuit court nor Supreme Court has read Article I (and FISA or prior laws) to trump Article II powers. All appellate cases, and the logic, go the other way. At best it's an unanswered question--one where retroactive liability to government official or private companies would be particularly unfair.

Under those circumstances, prospective immunity is cost effective and logical.

>Why enforce the law against >corporations? That's your >question laid bare.

Not at all--it's why start cases where standing and liability is highly unlikely, discovery of un-released U.S. government docs problematic, where the motive for the suits is fishing or embarrassing the President? Again, the telcos did nothing wrong--the law is favorable to the Administration at best, unsettled at worst, and even there, a private company cooperated with government during a national emergency. The telcos aren't the proper defendants here--and won't be held liable under nearly any scenario.

Even were there a plaintiff with standing (which is questionable), the telco would not be liable however the Judge viewed the unanswered question in Keith. If relief is impossible, that's not a case or controversy and should be dismissed at an early stage.

I submit your questions again prove my point--you're not really after telcos, you're really fishing for damaging documents among the Administration.

>I assume you
>are also willing to declare >people guilty and similarly skip >the determination phase?

>Who should Congress put in jail >without trial? Let's make a list! >Lefties and nutroots, for the >crime of being gauche? Sounds >like a plan we can all get behind.

This doesn't follow--we can't identify anyone who has broken the law under any interpretation of the Constitution.

In sum, get a Supreme Court ruling, or amend the constitution, or choose a President with whose wiretap policies you agree. This is more political debate than legal issue, and best resolved this November.

Margalis said...

"Again, the telcos did nothing wrong"

If only we had some way of determining that...some system designed to resolve questions about possible breaches of the law...

If you have legal arguments make them in a legal setting. Incessantly bleating about the innocence of telcoms is pointless and boring.

Yes yes, we get it, you think they are innocent. Good for you. Prove it in court.

Carl said...

One more try:

1) Presidentially-authorized warrantless wiretapping of foreign intel national security information (which the Administration labeled the TSP) is not clearly illegal. The Administration argues that Article II of the Constitution conveys such power. The Supreme Court refused to decide the question in 1972. But all Federal Circuit courts that have reached the issue have sided with the Executive Branch. And if the authority derives from the Constitution, it could not be voided by the FISA statute. Thus, far from being clearly illegal, logic and the weight of the precedent suggests the TSP was lawful.

2) Private parties who cooperate with the government in an emergency have long enjoyed a qualified immunity for acts not clearly unlawful. As a rough analogy, think good samaritan laws, immunizing those who attempt to offer medical care in a crisis, even if the samaritan gets it wrong. So -- even apart from questions of standing and justiciability -- the telcos are unlikely to be liable in civil suits.

3) The fact that there's only a small chance the telcos are liable hasn't stopped a flock of tort lawyers from suing them, because the low probability outcome could produce huge tort damages and because many such lawyers are motivated by politics (a discovery fishing expedition) rather than money. Regarding the money, the taxpayer money spent the Federal Courts, plus the purely private money invested by the lawyers, are thus wasted resources. Ordinarily, the tiny chance of success would dissuade most such plaintiffs--but the anti-Bush impetus is not subject to the normal discipline of the marketplace. And the largest costs necessitated by thicket of litigation will be born by the telcos--and ultimately by ratepayers like you and me.

4) For these reasons, retrospective immunity is appropriate.

Conclusion: I started our debate by asking that immunity opponents "at least account for," rather than "ignore," "the actual arguments." Too often, those opposed to the former TSP seem never to have familiarized themselves with the Administration's position or presume all such arguments are stupid.

Your replies to date hardly have advanced beyond square one. You presume the TSP is illegal. You never explain the public interest in wasting billions on claims better vindicated by voters, not judges and juries. I get that you didn't like the TSP--but your remedy arrives the first Tuesday after the first Monday in November.

Margalis said...

I have to give you credit for persistence, but you just keep repeating (in an extremely verbose manner) that you think they are innocent and that following the normal justice system procedures is a waste of time and money.

The first part of your argument is irrelevant. You think they are innocent, prove it in court. That's how it works. The second is a general argument against law enforcement.

"You presume the TSP is illegal."

I'd guess it was illegal but my personal opinion on the legality is as irrelevant as yours. The justice system is not based on what your or I guess, especially given that neither of us is privy to the full facts of the case.

The problem with your arguments (other than that you purposely misread opinions and selectively quote them to change their meaning) is that they are legal arguments but you steadfastly refuse to make them in a legal setting.

I understand the Administration's arguments very well and I reject them for a variety of reasons. But beyond that I reject the idea that the determination of guilt should be made by Congress rather than via established procedures.

There is no problem here that needs solving and no question that needs to be addressed. The system is working as intended. Telcos are accused of breaking the law, the justice system will resolve that.

PB said...

It would be nice if margalis would actually address, and refute, Carl's points rather than go on about his feelings. Carl has laid out WHY he has concluded the program was Constitutional and WHY the Telco's should be immune. margalis implies that Carl has pulled his arguments out of thin air when in fact the reasons are stated in this exchange and in more detail in his blog posts.
Carl's arguments are based on law and previous court rulings while margalis arguments have no Constitutional rationale.

Carl > Margalis

Margalis said...

My first troll. I'm honored.

PB said...

Figures. Why did I figure you'd resort to name calling? True to form, you didn't disappoint.

Your continued claim that he's pulled his conclusions from thin air is baseless. The law and past lower court rulings back up his arguments/position. His arguments are relevant precisely because they are based on the track records of the courts in the past. You have yet to show, legally, where your your arguments/positions derive from therefore it's your arguments who are currently irrelevant.
What lower court rulings can you point to that support your position and undermine Carls?

Margalis said...

"Your continued claim that he's pulled his conclusions from thin air is baseless."

I didn't claim that once. If you are going to comment please read first.

Also please do not try (and fail) to link to search engine spam sites with your name. Thanks.

Margalis said...

Perhaps I'm being a bit too harsh on PB. The legal questions are complicated. Here are a few links you can read if interested:




Blog comments are not the right forum to debate complex legal arguments. (Although the second link above is about as good as it gets in that regard) The right forum is a legal setting. That is why I spend minimal time refuting carl's arguments. This is simply not the right medium.

Legal questions like these are difficult, which is why we have a framework in place to resolve them.

Maybe the courts will find that FISA is unconstitutional, or that the plaintiffs don't have standing, or that the telecoms acted in good faith, or that state's secrets concerns prevent the cases from being heard. Or maybe they will be found guilty. Those are all possibilities.

Telecom immunity proponents are trying to avoid resolutions to the legal arguments. A few years ago they simply argued that the various spying programs were legal; now that those arguments appear suspect they instead argue that telecoms and the President are not subject to the law at all.

This administration has established a pattern of making bold legal arguments then avoiding forums where they can be definitively ruled on. They claim that FISA is unconstitutional but not in court. Just before the court was set to take up the Padilla case they transferred him to another facility to make the question moot. Gonzales argued that citizens don't have the right to Habeas but again declined to argue it in a legal setting.

The inescapable conclusion is that they don't have much faith in their own arguments, as they do everything they can to avoid submitting them to legal review.

It's one thing to argue that telecoms are innocent. It's quite another to argue that they shouldn't be subject to the law at all, and that Congress should take the unprecedented step of filling in for the court, determining innocence, then immunizing the companies against prosecution for past, present and future offenses.

PB said...

Well, at least you've finally done a google search, I'll give you credit for that.
"I didn't claim that once. If you are going to comment please read first.[/quote]

You certainly implied it when you said..." I'd guess it was illegal but my personal opinion on the legality is as irrelevant as yours. "

[quote]Also please do not try (and fail) to link to search engine spam sites with your name. Thanks.[/quote]

I don't know how that website got entered in there. It is defunct.

Regarding your links, Powerline affirms mine and Carls position. In reference to the others, I respect their opinions and have read them before. Carl's hyperlinks address them fairly well.

The rest of what you have typed is just a repeating of your past comments, that have already been addressed.

Margalis said...

I didn't do a google search, all those links are from my bookmarks. I've explained multiple times why I don't care to debate the legal arguments, that doesn't mean I'm not aware of them.

I don't think you understand what "irrelevant" means. It doesn't mean "wrong" or "baseless", it means "not relevant."

Arguments for telecom innocence are not relevant to the question of whether they deserve immunity; defendants are presumed innocent by default. Every day defendants who appear innocent (to some) appear in court. That's how it works.

The Powerline link does not support your position at all. It says that since we are unaware of all the facts that we can't make a proper determination, and that it could go either way. I'm not sure how you read that as a defense of telecom immunity, which isn't even mentioned in the piece at all.

It would help if you'd stop arguing three different things at once and focus on the topic at hand.

Autumnal Harvest said...

Carl, pb, Margalis has already repeatedly made the same, completely valid point, and the two of you have chosen to repeatedly ignore it, so I suspect this is futile, but I'll try to make his point more concrete. Let's assume, for the sake of argument, that the telecoms have a good case that they acted legally, and in good faith. Personally, I find this unlikely to the point of being ludicrous, but let's just go ahead and assume this for the sake of argument. How does this possibly justify a special law saying that the telecoms don't have to defend themselves in court? You're saying that the telecoms are innocent. Fine, then they can prove it in court, just like any other innocent person who gets sued.

Let me make it more concrete. If a mailman slips on my aunt's sidewalk, and sues her, and his legal arguments are bad, does Congress pass a special law exempting my aunt from the civil suit? No, obviously not. Now, everything you're saying about how the suits are bad for the telecoms applies equally well to my aunt. Yes, the telecoms will have to spend a lot of time and money in court defending themselves. So will my aunt. Yes, the telecoms have many arguments in their defense (not good ones, but I'll assume for the sake of argument that they are). So does my aunt, but she has to go to court and make them. So why do the telecoms get a special exemption from Congress from having to defend themselves in court, while my aunt gets stuck in court.

Margalis isn't ignoring Carl's arguments because he can't refute them. He's ignoring them because Carl's arguments should be made in a court, not in Congress. Let's see how this works by looking at one of Carl's points, that the telecoms should be exempt because they acted in good faith, and acting in good faith is an age-old legal justification. Hey, that's not a bad argument. That's quite reasonable. So reasonable, in fact, that I see that the pre-existing FISA law already explicitly allows the telecoms to use that as a defense. And the telecoms, not exactly legal dummies, have actually already made that argument in court. Oh, and I also see that Judge Vaughn Walker, appointed by Bush Sr., has already ruled on this, and said that AT&T could not possibly have reasonably thought that they were obeying the law, and that the case against them should therefore proceed. Now that Carl's argument has failed in court, he wants to take it to Congress, and have them rule on it differently. The only problem with that solution is that it's completely contrary to the rule of law.

Margalis said...

Link to a story related to your comments

(Just to clarify, the judge did not reject a good faith defense, just rejected that it was so convincing that the case should not move forward. Defendants were seeking to dismiss before the discovery phase and that was denied )

Proponents of telecom amnesty like to lean on Article II (they used to lean on the AUMF but have started abandoning that) which has some vague language about command of the armed forces (and nothing about Congress granting immunity) but for some curious reason they never quote Article III:

"The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States,..."

This is a statutory offense, but even if you allow that it brings up Constitutional issues the court is still the right place to address those.

What do these people think the court is for? It's very confusing. Congress determining that defendants are innocent and then immunizing them is co-opting the clear role of the judiciary to resolve questions surrounding potential legal violations and has no precedent AFAIK.

It is hopeless. Over at Carl's blog I see he has a post advertising our "debate" over the legality of TSP, even though I haven't been debating that at all. Carl is having a home-run derby in the middle of a football game.

Margalis said...

I should add that this is why I made the followup post
Now Introducing: Totally Not Guilty

Autumnal Harvest said...

I don't disagree with your characterization of Walker's decision, but I'm not sure it conflicts with mine. It looks to me as if the judge did reject the good faith defense, but since, as you point out, this was on a motion to dismiss, rather than the end of the trial, left open the possibility that the telecoms could try it later. Walker wrote:

. . . AT&T cannot seriously contend that a reasonably entity in its position could have believed that the alleged domestic dragnet was legal. Accordingly, the court denies AT&T's instant motion to dismiss on the basis of qualified immunity. The court does not preclude AT&T from raising the qualified immunity defense later in these proceedings, if further discovery indicates that such a defense is merited.

The first sentence looks to me to be a strong rejection of the good faith defense. Walker's opinion is here, with the quoted section on page 68, lines 16-25.

P.S. It would be nice if your blog gave the dates of posts, as well as the times, so I could know if the thread I was responding to was long-dead or not.

Margalis said...

Ask and you shall receive.

We can split the difference on the good faith defense ;)

Autumnal Harvest said...

Ooh, dates and times. Neat! Thanks!

My next request is for a defense of telecom amnesty that isn't based on lies or irrelevancies. I'm not holding my breath, though. I do have to give Carl credit in that his arguments are merely irrelevancies, rather than lies, which puts him one step above most pro-amnesty arguments I've seen.