Let's play the FISA game.

[merh]

My thread is inspired by those who want to know how to answer the FISA concerns when campaigning for Obama and by the discussions found in this thread.
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x6483380

There are myths out there about what the FISA law does and I think we need to openly discuss the law and not just what the ACLU or Feingold or Greenwald have had to say about the law.

I don't see the legislation as perfect but I also don't see it as a travesty of justice, an affront to our civil rights. I read the law to provide protections and guidelines that must be followed when applying for an order authorizing the monitoring and even when conducting the surveillance.

So with that in mind, please post your concerns in this thread so that we can discuss them rationally and look to the legislation to see if your concerns are valid. I'm willing to learn and to be proven wrong, are any of you?

---

[blondeatlast]

1. I like this idea. I still don't understand how the telecom immunity is a threat to

me personally, or any other individual, for that matter.

I really want to understand; I'm not taking a side here.

[Political Tiger]

2. I've been bombarded with insults

because I suggested FISA was not the only important issue facing us today. Hopefully you'll get some reasonable discussion going here!

[leftofcool]

4. Correct, it isn't the only issue but it is a major one that

will affect us for years to come. It is about holding on to Constitutional rights and truths, which appears to have gone out the window.

[merh]

14. Then play the game.

What about this bill makes you think your constitutional rights have gone out the window? Be specific and don't quote the ACLU to me and tell me "becuase they say so" - tell me what it is you believe it does and let's see if the law does what you fear.

[The Backlash Cometh]

26. If you're asking this question today, it means you weren't reading the posts yesterday

Assuming you're being sincere, here it is:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=6479841&mesg_id=6483285

The FISA bill basically says that we can't discover the facts on our own through civil procedure. We're not going to have the same basic rights that Paula Jones had to sue Clinton, for example. More specifically, we can't sue the Telcoms and get them into discovery to ask our own questions and get our own answers. That was taken away from us. We now have to wait for another carefully crafted report from the government agencies who will, in essence, be investigating themselves. Deals will be made, people will be protected and we will end up with another Warren Commission or 9/11 Commission. Nobody will believe it.

[merh]

28. See post 11

Then actually post the language from the legislation that provides what you allege it provides.

I am most sincere in my posting, I think those who have not read the bill and who do not understand the practical application combined with the words of informed folks, like Feingold, are the ones that are not sincere. The bill is pretty darned clear - it if was illegal and if it happened before 9/11 the statutory defenses do not apply.

[The Backlash Cometh]

39. You're not listening, mehr, because you don't want to.

Let me know when you understand what it means to give immunity to the Telcoms so that they don't have to face civil litigation. If you understood civil litigation, if you understood the discovery process, you wouldn't be playing these vacillating games. And that's all you're doing. That's what I would call a willful failure to know.

[merh]

40. It is you that isn't listening or using reason.

Refute the contents of post 11, debate the issues as addressed and cite me to the provision that grants the immunity you allege.

Oh and I do understand the discovery process and know that the court's have seen through the smoke of "states secrets" and have allowed the plaintiffs to conduct discovery and pursue their claims. I also know that with 803 that should be easier as now the court gets to review all things related to the surveillance and they can't keep classified materials from him. That silly ole substantial evidence language, seems the court has its work ahead of 'em but most have known that since the nightmare was uncovered.

BTW, Feingold's floor speeches and interviews will be used to bolster the Plaintiffs' cases, he said it is illegal, he is on the intelligence committee.

You are the one that is refusing to think and to apply the law practically, using existing law and precedence. I'd say you're posts and lack of reason are the example of the "willful failure to know".

[QueenOfCalifornia]

48. You are exactly correct

I live with a Constitutional Scholar - an expert who uses the Constitution every single day as a guide on how to proceed when doing his job. That is exactly what he explained to me when I asked him how granting civil immunity effects us. The ramifications are far reaching.

But no matter --- Just smile and do not fear --- Politicians never do anything to be afraid of. It's all in your mind. Shhhhhhh.

[merh]

55. And ask your constitutional scholar when a cause of action begins

to accrue under federal law. Is it when the injury occurred or is it when the injury is or should have been discovered?

[leftofcool]

3. Their immunity may not effect you but the fact that they

can still spy on you is a direct threat to us all and it will only get worse. Our government will know every email we send, every site we visit, everything we purchase online, every piece of art work we make and try to sell, every Ebay item you bid on and so on. Employers can spy on their employees because the government says they can and things just go from really bad to worse on this. I demand my privacy and the only way to get it, is to elect those to office who also believe in my privacy.

Left of Cool

[merh]

16. Please support this position by telling me where the law provides

for this?

[merh]

11. Well, let's start with this "immunity" myth.

The provision that some allege provides immunity actually provides "statutory defenses". A lawsuit is initiated when the plaintiff(s) file a complaint alleging the tort(s) and setting forth the facts as they know them. The defendant(s) are then required to answer the complaint. An answer is comprised of denials and defenses. Rule 12 provides a list of potential defenses that a defendant can rely on. There are other statutory defenses available, depending on the identity of the defendant. If a government defendant is sued you will always find the doctrine of sovereign immunity raised or used as a defense to the action. Raising a defense does not automatically dismiss the action. The defenses have to be substantiated, have to be proven.

Take sovereign immunity, that is a government agent cannot be held liable for his actions if they were within the scope of his employment with the government and if they were lawful. Cops claim sovereign immunity when they are sued for beating some one up. If they successfully prove they were defending themselves and following regulations and procedures and the law then the immunity applies. If they were malicious and beat the bad guy up for the sake of it or if they used excessive force and violated the procedures and if they violated the rights of the bad guy they can't rely on the immunity.

Now with the FISA legislation, it does provide the following:

‘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.

So, if as Feingold has said, it is known that the president broke the law, then the certification will not survive the review of the trial court as the action had to have been lawful. If the monitoring was had of US citizens' communications without probable cause and/or a lawful warrant or order issued authorizing same based upon that probable cause it was not lawful as it violated the 4th amendment.

Also, if it is true that the monitoring began prior to 9/11, then the statutory defenses are not available to the telecoms as before 9/11 is not a covered time period.

The trial court, either on it's own or upon the request of either party gets to review the AG's statutory defense certification and has to make a finding that the certification is supported by substantial evidence.

‘(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).

Feingold will likely be called as a witness and/or all of his floor speeches and public comments will be used by the plaintiffs to set aside the certification to allow the litigation to proceed.

FEINGOLD: "It Could Not Be Clearer...This President BROKE THE LAW"

"...it could not be clearer that this program broke the law, and this President broke the law. Not only that, but this administration affirmatively misled Congress and the American people about it for years before it finally became public."
...

"I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure."

http://www.huffingtonpost.com/howie-klein/blue-america-thanks-some_b_111919.html

And if the trial court does dismiss the litigation based upon the SD certification then the plaintiffs have the right to appeal and challenge the certification and have the findings of the trial court reviewed.

It should be noted that the legislation allows the trial court to review classified information when making a determination. They can't hide behind "states secrets".

I hope this makes sense.

[NYC_SKP]

22. Facts, facts, facts....Is that all you got, merh?

:rofl:

Your facts are useless against the reactionary zealots.

Passion is cheap.

Informed passion takes research.

[vaberella]

5. I was just going to pm you in this regard MERH. I felt it needed to be done...

EXACT language and examination is low.

As a future initiative plan, I think this would be a great time to point out when another bill gets put on the floor we have to actually open a thread to discuss the language and educate ourselves to understanding the language and how it relates to us either negatively or positively. So then when we speak to our reps we aren't talking out of our arses and we can really give logical, pragmatic, detailed, and ALWAYS educational feedback.

Let me know what you think about that?

Actually let's take it one step further, we should ask Skinner to open a section if possible so we can focus all our posts, that are directed on bills, to that section so topics don't get lost in the shuffle.

K&R

:kick:

[blondeatlast]

6. I proposed and got a "Legislative" forum on DU that sees no action

whatsoever.

I think this is a fine idea--that's the kind of thing I come here for.

[vaberella]

10. What? No action? Geez, what's the people on this site been up to?

People keep shouting and then really do nothing to clearly express the views with language and detail, as well as legislative education. ~sigh~ Please pass me the link (currently searching for it), maybe we can build up the momentum to get people mobilized and knowledgeably speak on the issue(s).

Progressive proclaimants, which has as of late, just sound like lots of talk. Most can't even defend their assumptions or know where these assumptions are growing from. If people truly care about the bills and acts that are being passed around in the House and Senate, that so many claim to say the Senate doesn't read, then WE should read them and keep them abreast of the situation.

This will be us discussing the issue, showing that the public is aware and keeping track of their talks and what their doing and it also shows that we're definitely holding them responsible.

Thank for letting me of your initiative plan that hasn't been given the attention it deserved from this thread. We need to give these people a clue.

[blondeatlast]

15. Looks like it went the way of the dodo when they trimmed the groups.

I'm not surprised; there were maybe 5 people who ever participated and the momentum just dies. I thought it was a slam dunk and Skinner loved the idea, he even commented in the proposal thread before we had the ten signees..

Ah, well...

I think a regular feature in the fast moving forums might get some action though. I'd love to see such.

[vaberella]

43. I'll resurrect to Skinner again. Bush's past injustices have sparked my

concern and question legislative law. I definitely want to talk about it and understand it and get peopele involved in it.

[DevonRex]

81. I would love to be a part of that group. I have a bit of experience

in enforcement of laws, which also requires that you be able to interpret them correctly. And occasionally to find loopholes that you can use.

[merh]

21. It could be useful to have a separate forum or a group set aside.

The problem is that folks don't see the discussions, they like their GD and GDP. Posts here are missed by many as they are not in GD and some DUers refuse to be a part of GDP's maddness.

All we can do is keep trying to discuss things rationally.

[LynneSin]

7. Here's my 2 cents...

I think this bill in Congress would only delay real action.

If we filibuster action gets stalled. Not a bad thing but not a good
If we had the votes to succeed it would have been veto'd so back to square one.

I think some dems just wanted to hand this over to the Courts and ACLU and let the decision be made there where perhaps the real truth will come out.

[blondeatlast]

8. Which brings us back to why we need to stop McSame at all costs.

It's not just SCOTUS, it's all federal courts. He'd be freakin' disaster since he has no principles whatsoever; he'll appoint who he's told to appoint with nary a thought.

[LynneSin]

12. My biggest fear right now is we lose a justice before 2009

:scared: Well we lose a liberal justice. Not too upset if it was Scalia, Thomas or Alito although I am in no way advocating we do anything or pray to jesus to have something done to those 3.

[merh]

23. I share your fears.

And personally, I think the impeachment of Scalia is more important than the impeachment of GWB. GWB will be gone soon, we are stuck with Scalia's madness until he retires.

:scared:

[LynneSin]

30. The Supreme Court is a president (or resident in this case) legacy

To this day I still get saddened to think the legacy of Thurogood Marshell was replaced with Clarence Thomas. Sure they're both African-Americans but after that these 2 have zilch in common. If anything Thomas was an insult to a legend like Marshell, who was the biggest advocate for civil rights.

[blondeatlast]

38. Absolutely--and I think it's within the realm of possibility, I really do. nt

[merh]

18. The courts have always been the ones to decide the issues

such as this. If the bill infringes on our rights then the courts will toss that provision that does the harm.

The district court did find that the monitoring was illegal on the 9th.

Suing George W. Bush: A bizarre and troubling tale
U.S. officials went to extremes to stifle our legal challenge to Bush's warrantless surveillance -- but a federal judge says the program is criminal, anyway.

By Jon B. Eisenberg

Jul. 09, 2008 | On July 3, Chief Judge Vaughn Walker of the U.S. District Court in California made a ruling particularly worthy of the nation's attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case in the epic battle over warrantless spying inside the United States, Judge Walker ruled, effectively, that President George W. Bush is a felon.

Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear. Bush administration lawyers have fought vigorously -- at times using brazen, logic-defying tactics -- to prevent that from happening. The court battle will continue to play out as Congress continues to battle over recasting FISA and possibly granting immunity to telecom companies involved in the illegal surveillance.

Suing George W. Bush: A bizarre and troubling tale
U.S. officials went to extremes to stifle our legal challenge to Bush's warrantless surveillance -- but a federal judge says the program is criminal, anyway.

By Jon B. Eisenberg

Jul. 09, 2008 | On July 3, Chief Judge Vaughn Walker of the U.S. District Court in California made a ruling particularly worthy of the nation's attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case in the epic battle over warrantless spying inside the United States, Judge Walker ruled, effectively, that President George W. Bush is a felon.

Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear. Bush administration lawyers have fought vigorously -- at times using brazen, logic-defying tactics -- to prevent that from happening. The court battle will continue to play out as Congress continues to battle over recasting FISA and possibly granting immunity to telecom companies involved in the illegal surveillance.

I don't think the statutory defense certification will do much good if the AG claims the actions were legal as the USDC judge has ruled that they were not. You can bet that the plaintiffs will be citing this ruling when they ask for review if the AG does give blanket certifications.

[NYC_SKP]

9. L.I.V.s Who'd have thunk...

All this outrage over the FISA legislation by individuals who, I think, haven't read even a bullet point description of the legislation, or have any concept of it's history, or how it plays in the context of other pieces of legislation.

Low Information Voters, a descriptor most often applied to low-income and low education level Americans, seems to describe many knee-jerk progressives/liberals.

Amazing that they'd be happy to take down our candidate without bothering to understand what it is that got their panties in a bunch. (no, thats' not sexist, men wear panties, too!)

merh: Great posts, I've linked your posts as replies to others, very useful information, you are a real asset to the board!

:hi:

K and R

[LynneSin]

13. I think Faith-Based Charities got the same exact thing

Obama was never praising Bush's program but wanting to shut it down and replace it with one that would allow those faith-based charities that functioned without preaching & discriminating to compete for charities funds along with the non-profits.

[NYC_SKP]

19. Yup, automatic knee-jerk zero tolerance for it, now matter how much

sense it makes. That's the purists for you.

IMO, smaller local faith-based charities are by far more efficient with funds and effective in their efforts than the larger "non-profit" charity programs.

[Commie Pinko Dirtbag]

25. Me, I get more of a "sharks smeling blood in the water" vibe instead. -nt

[NYC_SKP]

33. Some are sincere in their disappointment, others want Obama to lose.

Imagine that.

:shrug:

[blondeatlast]

17. It appears that way.

I asked a question upthread and I'm still getting the standard talking points, Those I know; but they really don't tell me what or how FISA is a threat.

I read the ACLU site and John dean's take as I normally would and I still don't see what all the passion is about. It's not good, but geez...

[vaberella]

20. I agree with you and I've done the same to MERH's statements.

I've actually come to realization that none of them have read the FISA. Very proactive posters that I've actually commended on posts in the past have let me down in regards to their lack of knowledge in regards to the FISA. The only forms of educational provision they have developed is link producing to someone they consider to be "reliable" or a "reliable law scholar that agrees with them".

If asked if any have read the bill, most have said no, or not bothered to answer at all. The others who have supposedly read the bill, have only read an extremely dated version of said bill and not the current one passed by the Senate.

Further more, in regards to Feingold's position which was condemning (if I remember correctly) to strongly supporting Obama---shows a lot did change between the last bill that was talked about late June and early July. That being said, I think people have to actually read the 4th Amendment, read the past FISA, read the Patriot Act/PAA and then read this FISA to really grasp what's going on, because in each argument used so many of these progressives claim infringement of constitutional rights. However, so many of them were ripped from us when Bush broke the law and especially from the enactment and passing of the Patriot Act/PAA.

[merh]

24. I have a great respect for the rule of law. I cherish the constitution.

I would be the dems' most vocal opponent if I thought this legislation did what I have read it did. Before I reacted I decided to read it and see if all they were saying about it was true. To date, I haven't found anything in the legislation that supports the concept that it trashes our constitutional rights. I actually read it as giving us greater protection. This legislation says "despite the terrorist activities the government shall/must protect the 4th amendment rights of US citizens".

I appreciate your kind words relative to my posts.

[azmouse]

27. An amazing thread and great responses.

Thoughtful and informative, no hysteria. Nice.
This is the way we Dems should approach things. Thank you.

[azmouse]

53. ...

[Egnever]

29. Well the aclu and fiengold said it destroys our fourth amendment

although I cant for the life of me figure out how. Nor Can I figure out how if it did it would not be thrown out on that basis when challenged in court. Since the first challenges came before the ink was dry on this one I suppose we will get to see the arguments laid out for us in due time. It should be comforting to the many who think this bill is the end of the world as we know it to realize that our system is still functioning despite bushes assault on it and we can still overturn bad laws if need be through the courts as we always have.

I hope people with actual concerns do post here Merh its good of you to offer this thread up for people to come in and discuss them intelligently. I Hope people use the opportunity. Judging by the discussions so far on this subject though my hopes aren't really high.

Just the same Kudos to you, you were one of the first to actually help me trudge through this bill when I first started trying to decipher it and for that I will always be greatfull.

So a big K&R from me to you.

[LynneSin]

31. Feingold also said that electing Obama is the one thing we can do to help fix FISA

:D

[merh]

32. I guess folks don't want to discuss this rationally

They just prefer being angry. :shrug:

[World Citizen]

34. Beyond the FISA game.

Fourth amendment rights violations have been on an incline for the past 45 years. Sure Carter and Clinton slowed the trend but just as surely the intelligence agencies continued the practice to some degree. Now of course, the violations are running rampant. A bill passed by congress will have little effect on that practice. I don't believe for one second that "FISA" is even in the any American Intelligence Agency's vocabulary. They will continue to attempt to get away with whatever suits them...BAU. It's like putting up a sign in the boy's lavatory in a high school that says "NO SMOKING." In practice its meaningless. It's like throwing a pebble in the path of a bulldozer. I don't believe for one second that BO is a proponent of invading privacy. The election of BO will be like pushing a granite boulder in front of the bulldozer, stalling it long enough so that WE can build a mountain on the foundation of that boulder.

Idealism is fine for wishing and hoping, but being realistic allows for more possibility of achieving your goals.

[merh]

37. I am pleased to welcome you to DU.

Your rational views are refreshing.

May I also point out that GWB broke the law despite the "non offensive" FISA version being on the books

[World Citizen]

41. thank you ... and to elucidate

of course he did....... he is a dupe and a dope...... a puppet doing what he is told. His own cabal and handlers laugh at how stupid he is. That is why he is such a good puppet. But it's not a joke and not a game. It is imperative that we understand who the enemy is. It is not possible to overestimate them.

But for a candidate, the election IS a game with continuously changing rules. So far the OB campaign is doing pretty well. There is always room for improvement. Be prepared though. Its going to get 10 times worse and it seems to me that the BO strategy realizes that.

[rudy23]

46. It's the tolerance of the law-breaking that bothers me...

and guts the effectiveness of the 4th amendment. It sets a very dangerous precedent---which *may* be quelled if Obama were elected. It would definitely be more likely.

If his base is misunderstanding this, maybe he should come out with a reassuring statement. The fact that he hasn't is enough to make me think that he either doesn't care, or WANTS to get publicity for angering us, to prove to the "center" that he's right for the job.

[merh]

47. What tolerance of the law breaking.

FISA says that statutory defenses apply if the law was followed, it says nothing about allowing them if the law was broken.

Please link me to the part where it lets the violations of the law slip by.

Edit, please read post 11.

[blondeatlast]

42. That's the second time you've impressed the hell out of me. I'm so glad you

found your way here, WC.

I look forward to reading lots more. I'm already a fan of your focus and reason! :toast:

[NYC_SKP]

45. Nicely put W.C.

Welcome to DU!

:hi:

[Joe Fields]

35. Sorry. I don't play games. I listen to what the majority of experts say.

[merh]

36. Translation: "I don't want to read and think for myself.

I like being a parrot."

[Joe Fields]

50. lol I've read the text. I don't think I have to prove to anyone here

that I am a free thinker. A quick search of my posts for the last several years will attest to that.

No, I don't presume to be a constitutional scholar, is all I meant, but hey, whatever floats your little dinghy.

[merh]

52. Sorry you perceive yours as a dinghy.

You should think better of yourself. It is obvious there are issues, if you could debate the issues you would - you either doubt yourself or you can't figure out the bill and you are letting do your thinking for you. That doesn't mean small minded, it could also mean lazy and that is fixable, so give yourself a break

[Pavlovs DiOgie]

44. Thank you so much for this thread

I've been avoiding most of the arguments because they are clearly hot-headed on both sides. It speaks volumes that so few are willing to argue FISA on its own merits - too many would rather have a heated argument because it feels good than truly discuss our constitutional rights and their possible infringements. I am hoping some of the more rational posters will come to this thread and have a good discussion, because I'd like to hear thoughtful arguments both for and against FISA so that I can better understand what this law means in its application.

[TexasObserver]

67. If congress passes an unconstitutional act, it is up to the courts to make that determination.

Congress can pass the law, and the president can sign the law, but it's up to the federal courts to rule on constitutionality. All the arguments made at DU that it is constitutional will be made in cases throughout the land. Some trial judges will rule one way, some will rule the other. Those cases will go up on appeal. Eventually, the Supreme Court will likely rule on it. THAT is when we will know if the act is constitutional. Until then, it's just parlor talk among lawyers, something to argue about over cocktails.

[depakid]

49. So let me get this straight, you don't think this law provides retroactive immunity

for corporate malfeasance?

or if it does, you don't see any constitutional problems with that?

[merh]

51. I don't see it providing it.

See post 11

[depakid]

54. You don't?

I sure construe the relevant portions of statute you cited as providing retroactive immunity and I see the provisions regarding attorney general certification as ministerial, not discretionary.

That's what every other legal expert who's perused the statute(s) sees as well.

If you differ from that interpretation, I'd enjoy hearing the reasoning behind your construction of the statute(s).

Or, if you're willing to cede that point, we can discuss the constitutional ramifications (as well as the practical consequences) of retroactive civil immunity- both as it applies here, and in the abstract.

[merh]

56. See post 11

I truly believe federal courts that are hearing these cases will follow the law and review the certification provided regarding the statutory defenses to be certain that the certification is supported by substantial evidence in compliance with the law.

[depakid]

57. I read the statute

Do you understand the difference between "ministerial" and "discretionary?"

[depakid]

58. Also- "substantial evidence" is a legal term of art

In doesn't mean what most laypersons think that it means.

It's a very low threshold (often described as "more than a scintilla").

To use a sports metaphor, it's 1st and 10 from the 20 yardline- whereas "proof" in civil cases has to be supported by a preponderance of evidence- ya gotta cross the 50 yardline.

In practice, showing substantial evidence is easy. One simply has to adduce a few logical and credible facts to support the position- quite irrespective of whether different facts may militate the other direction.

[merh]

61. Not so, scantilla of evidence is miniscule

Substantial evidence is evidence that will hold up in court.

Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971).

[depakid]

66. Apparently, you've never been involved in any aspect of administrative law or procedure

Ask someone who has what the term of art means IRL. You'll get about the same answer I gave you.

[merh]

68. Obviously you haven't been involved in federal civil rights

case that involve civil liberties issues and obviously you are unfamiliar with the Federal Tort Claim act, the doctrine of sovereign immunity and/or the Tucker Act.

Congress has tried to stifle litigation for years and when they do the courts look to the constitution and its requirements when making rulings and when asked to curtail the due process rights of the citizens.

[depakid]

72. Wow. The shotgun approach!

I'm not the type that's ever touted credentials online, so you'll just have to stick to the relevant legal analysis of the case at hand- which involves BASIC Administrative law and statutory construction.

[merh]

76. When the civil action is pending it is not basic administrative law,

it is the Rules of Civil Procedure that govern and it is the precedence of the courts relative to civil suits which will be looked to for guidance. Like I said, they will look to existing 4th amendment case law cases, they will look to similar federal statutes which afford defenses (<<<Note defenses and not immunity) and they will look to the purpose of the statute, not the amendments thereto.

[depakid]

84. The purpose of the statute IS retroactive immunity

Immunity attaches based on a certification of facts prsented by an administrative agency (the Justice Department). Once those facts are established by "substantial evidence" -there's no longer an issue.

The FRCP only affects how and when the immunity claim is asserted; it doesn't affect the substantive law- which is settled by statute (or on appeal).

Now, there ARE constitutional issues with the takings clasue of the 5th and 14th Amendment- but since you refuse to accept that there's retoractive immunity (which "takes away" a vested right of action- e;g; property) it's fruitless to even go there.

[merh]

59. Do you understand the term "substantial evidence"

and that the court is obligated to make a finding.

Further, the review of the certification can be one the court's own motion or upon the motion of the plaintiff. Supported by substantial evidence, wouldn't that mean that the AG has to prove that the action was lawful. To be lawful it would have to be in compliance with the 4th amendment and based upon probable cause and/or in full compliance with the law that allows for such monitoring which require court orders. Then there is that time span thing, the before 9/11 monitoring would definitely not be afforded the protections of 802.

[depakid]

60. See above.

An agency has to be pretty derelict in its analysis and presentation if it fails to meet this meager standard.

Essentially, it has to have acted arbitrarily and capriciously.

[merh]

63. See post 61

You are missing the purpose of the FISA courts and the FISA law. They are to protect the constitutional rights of US citizens. If the AG can provide the trial court with the substantial evidence that shows that the 4th amendment rights of the persons monitored were protected, then yes, the certification will result in a dismissal.

[depakid]

64. You're completely miscontruing the statute.

The court's not going to make that determination.

In individual cases, it's going to look at whether there's substantial evidence that the procedures Bush authorized were followed. If so, immunity attaches and the cases will be dismissed.

[merh]

69. You are mistaken and the one that is misconstruing the statute

If the president ordered the action AND if the action was lawful.

It is you that is not reading the statute as written and that fails to understand its construction and our constitutional protections and the role of the courts and how seriously the courts take their jobs.

[depakid]

71. The EXPRESS Congressional intent behind the staute is to declare Bush's procederes lawful!

That's what the debate over the Amendments (among other things) was all about- and that's the purpose of the language.

If Bush's authorized procedures were followed, the court has NO DISCRETION whatsoever to revisit the question in civil proceedings.

On the other hand, if some other behavior was going on- say wiretapping solely to gain a business advantage, for example- the telecoms would be liable for that behavior.

[merh]

73. LOL but it cannot do that if his directives VIOLATED THE

CONSTITUTIONAL RIGHTS OF THE CITIZENS.

You just don't get it, that cannot be done, what is truly comical is they really didn't even try. If the legislation contained some of the court's buzz words that have allowed for searches without probable cause then I would share your concern.

The language is clear, the action dismissed if the programs ordered by the president AND if they were lawful (not that they were lawful because they were ordered).

[depakid]

75. I give up

You win, everyone else is (and has for the last 18 months been) wrong....

[TexasObserver]

62. Nice job. Thanks.

I just don't have the patience any more to argue these points in such detail.

If I felt this bill did what so many here think it does, I'd be having a fit myself. I don't, however. I think none of this matters compared to winning the presidency, taking control of the Justice Department, and taking control of the judicial appointments. Those two places are where the future of domestic spying lies.

[depakid]

65. " If I felt this bill did what so many here think it does, I'd be having a fit myself."

I guess it's easier to remain in denial and ignore every legal expert who's read the statute and is familiar with the relevant case law.

It's all a big conspiracy, right?

:tinfoilhat:

[merh]

70. You are absolutely correct.

The FISA law that existed in 2001 did not allow the monitoring that GWB ordered and this law cannot stop the violations. This admin has ignored the law and blatantly violated it. We need a new executive who can clean up the DOJ and that will allow the DOJ to represent the citizens. We need someone that takes the judicial system seriously and that will appoint qualified judges. Until then, no law can be passed that will protect our rights.

[bread_and_roses]

74. Why on earth would you demand that posters not quote relevant experts,

Am I a constitutional scholar? No. Am I any sort of lawyer? No. Is there any chance that I will read the language of this Bill and fully understand its' legal implications? No. Can I construct a criteria for what constitutes an expert? To a not infallible but reasonable degree, yes.

I think the ACLU has a far better grasp on what the implications of this Bill than do I. Are they the last possible word? Maybe not. There are other experts out there, but before I take any of them more seriously than the ACLU I want to know that they are not in a position to profit in any way from the Telecoms, are not in the military or the intelligence field, and are not in a position to profit from members of the illegal Junta now in power, the defense, or intelligence industries.

[vaberella]

77. A lot of the relevant experts I read from the links, NEVER gave language from FISA

to support their claims. Nor directed clear language as to where in FISA it is. And for those who did say things were in FISA and listed the bill places, it was on the dated FISA some of which going as far as 2007 FISA---which has been rewritten and revised about 7 times. That's the problem.

There is a thing called BURDEN OF PROOF. If you cannot give evidence using the language of the law that is put down then you are not providing evidence at all but conjecture and speculation on the would bes and could bes but not on the WHAT IS.

Hence the problem.

[merh]

78. Then don't play the game

and don't think for yourself - believe what "they" say, be enraged and frustrated and misinformed. Its up to you.

[bread_and_roses]

79. oh, what nonsense

As if consulting experts means one doesn't "think for yourself." And thank you, but I have not played the game, nor do I intend to. I think your game has stupid "rules." And I would think it would be the height of pomposity and ridiculousness to think that I can parse out a Legislative Bill with more expertise than those who make a vocation of it. I like to give credit where it's due, and not pretend to more ability than I have.

[merh]

80. With regard to the bill, relying on experts does mean you don't

think for yourself. The "experts" wide sweeping conclusions are not supported by the actual language of the bill. When your "experts" make the statements do they support it with the language from the bill?

Legal briefs and journal articles are the writings of experts. They will not be taken seriously by the court or printed in any journal if they are full of opinions not supported by cases or the language of the bill they are discussing. So tell me where they give you that analysis, where they have published their legal opinions that are more than just an opinion like yours or mine.

Read the thread linked in the OP - read the discussions had here that include the language of the bill. You don't need a law degree to do that.

[DevonRex]

82. Yes. And give me 2 judges in a courtroom and there will be

disagreement. Same thing with any 2 constitutional law professors.

And you would be totally amazed at how many legislators don't understand what they wrote.

I used to be on the law enforcement side of things. A law is rarely what it is purported to be. Practical application is the test.

[merh]

83. So very true.

.